Eight Soldiers Plan to Sue Over Army’s Stop-Loss Policy -NYT

[Rose Siding]

....But the eight share a bond of anger: each says he has been prevented from coming home for good by an Army policy that has barred thousands of soldiers from leaving Iraq this year even though the terms of enlistment they signed up for have run out. And each of these eight soldiers has separately taken the extraordinary step of seeking legal help, through late-night Internet searches and e-mail inquiries from their camps in the conflict zone, or through rounds of phone calls by an equally frustrated wife or mother back home.

With legal support from the Center for Constitutional Rights, a liberal-leaning public interest group, lawyers for the eight men say they will file a lawsuit on Monday in federal court in Washington challenging the Army policy known as stop-loss.

Last spring, the Army instituted the policy for all troops headed to Iraq and Afghanistan, called it a way to promote continuity within deployed units and to avoid bringing new soldiers in to fill gaps left in units by those who would otherwise have gone home when their enlistments ran out. If a soldier's unit is still in Iraq or Afghanistan, that soldier cannot leave even when his or her enlistment time runs out.

Since then, a handful of National Guardsmen who received orders to report for duty in California and Oregon have taken the policy to court, but the newest lawsuit is the first such challenge by a group of soldiers. And these soldiers are already overseas - transporting supplies, working radio communications and handling military contracts, somewhere in the desert.

http://www.nytimes.com/2004/12/06/national/06soldiers.html

[rpannier]

1. They have not a leg to stand on...

I was in the army and we knew that they had that power to do what they're doing. They did it during Desert Storm. They'll lose.

[Lone_Star_Dem]

4. Sadly, I don't think they do either.

I am still proud of them for their protest to go off and fight Bush's war. If I were them, I would have to be dragged kicking and screaming the whole way to Iraq.

[RedCon1]

7. The military contract obligates a soldier for a minimum of 8 years

regardless of his actual stated contractual period of enlistment. Beyond that 8 years, as far as I can tell, lies the grey areas of contract law. I'm no lawyer but, it appears to me that within these grey areas they have a chance. Everybody knows going in that they owe Uncle Sam 8 years but, to my knowledge, there is no mutually agreed upon contractual obligation that allows the government to involuntarily retain soldiers that have fulfilled that 8 year minimum obligation. Are you aware of something that I am not regarding this?

[rpannier]

10. After I got out

I received a notice that should the situation in Kosovo drag on they would re-activate me. I had alread served my IR time. Personally, I would have gone -- I deplore Genocide and the Balkans was my specialty in the army. But, they could legally call me back up even after the 8 years.

[RedCon1]

11. My understanding of the stop loss

is that it only pertains to units with orders for Iraq or Afghanistan, war zones IOW. An individual soldier can not be involuntarily extended unless his unit has orders for one of those two places and then it as the discression of the unit commanders. Therefore, Kosovo/Bosnia, currently at least, do not fall under the stop loss order. Back in 1998, Kosovo possibly fell under a stop loss of some sort. Is that around the time when you got out by chance? Personally, I didn't much care for the Balkans and I think we should pull out and let Europe take over in a gesture of thanks for all of their support for us over the past few years.

[rpannier]

12. I meant

In 1998.

[Just Me]

26. *giggle*

Sorry,...I just couldn't hold it in.

[rpannier]

30. Thank You

LOL....

[ogradda]

2. i hope this helps them.

enough is enough.

[99Pancakes]

3. The back door draft

Is there a draft coming through the back door, Ma? Giddy-up, cowboy.

[Just Me]

27. I REALLY liked the idea of a national vote on war,...

,...and all those who voted for it would be the first on the "no excuses" draft line.

Isn't that just a FABULOUS idea!!! :bounce:

[Eloriel]

5. Oh, God bless these heroic men

I fear for their safety -- they're prime targets now for the worst, most dangerous duty in Iraq. And of course their careers are OVER, but they knew that going in.

[NNN0LHI]

6. Let this be a lesson to always read ALL the fine print in any contract

And to never believe a word any recruiter ever tells you. It their job to lie and withhold information. Its how they make their living. Wake up. If you know of teens who are not mature enough to understand the implications of signing on THAT dotted line, it is our jobs as parents, and friends to search out the truth and explain it to them. May not work, but at least we have tried.

Don

[American liberal]

8. nice sig line

I am impressed with those soldiers. I don't know how the tour thing works exactly, but if I thought my tour was up after fighting under awful conditions in a desert and I was told that I would have to stay an additional two months or so--twice!--I would probably have a mental breakdown!

I mean, have you ever endured something horrific, too awful to imagine, knowing that the end is in sight, that you are soon to get some relief and maybe have a slice of pizza, only to learn that you have to endure it a little longer? I can't even imagine what it must be like for those men and women whose only sense of hope comes from getting to go home.

[aikido15]

9. I agree...

I would probably lose it...completely..what is that? A section 8?

[RedCon1]

13. There is no fine print obligating a soldier to serve beyond 8 years.

This is a direct result of a Presidential order, not a soldier failing to read his/her contract. Besides, 18-19 year old kids aren't worried about getting killed because that only happens to other people and the enemy soldiers of course. I mean, let's be realistic here.

[NNN0LHI]

15. I think you may be mistaken?

http://usmilitary.about.com/cs/joiningup/a/recruiter4.htm

What the Recruiter Never Told You

Part 4 -- Enlistment Contracts and Enlistment Incentives

<snip>Paragraph 10a of the enlistment contract states:

a. FOR ALL ENLISTEES: If this is my initial enlistment, I must serve a total of eight (8) years. Any part of that service not served on active duty must be served in a Reserve Component unless I am sooner discharged.

This means two things: Let's say you enlist in the Air Force for four years. You serve your four years and get out. You're really not "out." You're transfered to the INACTIVE Reserves for the next four years, and the Air Force can call you back to active duty at anytime during that period, if they need you due to personnel shortages, war, or conflicts (such as Iraq).

Here's the second thing -- the military may not let you out at the end of your active duty tour. Under a program called "Stop Loss," the military is allowed to prevent you from separating, during times of conflict, if they need your particular warm body. During the first Gulf War (1990), all of the services implemented "Stop Loss,"preventing pretty much anyone from separating, for an entire year. During the Kosovo Campaign, the Air Force instituted "Stop Loss" for those in certain "Shortage" jobs. During Iraq and Afghanistan, The Army, Air Force, and Marines instituted "Stop Loss," again, directed at specific individuals with shortage jobs, or (in the case of the Army), sometimes directed at specific units. The key is, once you join, if there are any conflicts going on, the military can hold you past your normal separation or retirement date.

[RedCon1]

16. Possibly, but not according to para. 10a. Look closer at what it says:

"If this is my initial enlistment, I must serve a total of eight years." I don't see anything about obligations of service beyond eight years or a second enlistment. Once the eight years is up, your obligation to Uncle Sam is over. Unfortunately, the Commander in Chief seems to be endowed with the power to rewrite the contract as he sees fit which is what this stop loss is all about. He then delegates this authority to Unit Commanders who then utilize the Presidential Stop Loss order to prevent retention shortfalls. Personally, I don't think the U.S. Constitution specifically grants the President the authority to do this. It does specifically prohibit slavery and servitude which is what this is all about. I'm pretty sure we fought a war with England over military oppressment a couple of hundred years ago too (War Of 1812) which is exactly what an involuntary extension of military duty is IMHO. I have never seen a specific Federal law that provides for this authority either although, I must admit, I am no lawyer and if the president does it, it must be legal, right?

[Scooter24]

19. Contract Law

ah yes. The bastion of 1L boredom. :P

I will agree that it's a shady area to analyze. However, the Constitution does empower the legislative the power to "raise and support armies" as well as establish "rules for the Government and regulation of the land and naval forces."

See Article I, Section 8, cls. 12-14.

The question that would be posed to the court is - Does Congress have the power to prevent soldiers from leaving?

We all agree that these soldiers entered into a binding agreement by two competent parties, legal in purpose and consideration, and by genuine assent. As stated in the contract, each soldier owes at least eight years of accumulated service. So taken into account that provision, any soldier that has not completed his or her eight years would not have standing to sue.

But what about those who are set to retire after their eight years?

Well, they could argue that the government can't legally keep them in beyond their will because doing so will violate the right afforded to them by contract (promissory estoppel).

I will not argue that point because it is plain as day. There is, in my opinion, a larger precedent here that by constitutional standards should be held as the main factor in determining the majority for this case.

It is nonetheless a constitutional importance for the military, should the occasion arise, to be ready to fight wars and that it is the primary business of the armies and navies to assure this function. Schlesinger v. Ballard, 419 U.S., at 510. How this business is determined rests upon the authority granted to Congress by Art. I, 8 cls. 12-14 of the U.S. Constitution, and with the President. See U.S. Const., Art. II, 2, cl. 1. "We cannot say that, in exercising its broad constitutional power here, Congress has violated the Due Process Clause of the Fifth Amendment" Rostker v. Goldberg, 453 U.S. 57.

"As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. ... But the proposition simply denies to Congress the power to raise armies which the Constitution gives. That power by the very terms of the Constitution, being delegated, is Supreme." Arver v. United States, 245 U.S. 366

Some have criticized, and rightly so, that this practice (i.e., "stop-loss") is tantamount to a "backdoor draft." I won't argue against this, but surprisingly so, it's legal. The military contract protects the rights of all our services men and women against bureaucratic manipulation. However, after analyzing the Due Process claim by these men and women who feel their rights were violated because their contract was involuntary extended, I will have to kindly disagree with their notion and find the policy legal. The court should dismiss this claim and not overrule the legal principle guaranteed to the government by Art. I, 8. It is superfluous to contend that contract law takes precedent in this matter.

Edit: Another route could allow the plaintiff's to claim that the Department of Defense was not in their power to extend these contracts without enacted law. The statute gives the Legislative, not the Executive, branch the power to make policy for the armies. However, several prior decisions have stated that Congress has empowered the Executive with special powers during this time of "war." A de facto declaration of war being one of those decisions as well.

[RedCon1]

23. Amendments 13 and 9

Amendment 13 - Slavery Abolished
1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.


Amendment 9 - Construction of Constitution
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Stop loss is more than a back door draft or a contract violation, it is clearly involuntary servitude. Amendment 13 prohibits this. Amendmemnt 9 prohibits the enumeration of certain rights which disparage other rights retained by the people. The Government, by enacting stop loss, is disparaging a right retained by the people to not be involuntarily placed into servitude.

[Just Me]

28. Hmmmm,...FASCINATING POINT!!!!

You should work for the CCR!!!

Damn. I LOVE it!!!

Hell, we may even be able to utilize your argument in other ways to defeat the devolution of democracy and frightening evolution of fascism. After all, "involuntary servitude" applies to every member of the human race.

WOW!!!

:yourock:

[RedCon1]

29. Thanks for the encouragement.

I'm no lawyer though. I suspect that a competent lawyer could find fault with my logic even though it appears obvious that an involuntary extension of military duty is tantamount to involuntary servitude perpetrated by a government against its people. That's what really bothers me about the whole thing too is that no government should have that much control over the lives of its citizenry.

[Scooter24]

31. more

Ninth Amendment claim-

The reason the Ninth amendment was added was because the framers were afraid that by listing specific rights, in the future people might argue that these were the only rights that citizens had -- and this was not their intent. In fact, your rights are not given to you by the government -- your rights are effectively unlimited, and only limited by the laws that the government is empowered to pass. A special "right" would not exist in this situation.

See Griswold v. Connecticut

Thirteenth Amendment claim-

You are expanding the scope of the amendment and interpreting the clause too literally.

There was a case brought to federal court in 1995 where several students held that their school's mandatory community service requirement for graduation violated their constitutional rights. They argued that the program violated the Thirteenth and Fourteenth Amendments.

The Second Circuit court had this to say-

"The Supreme Court has conceded that, "hile the general spirit of the phrase 'involuntary servitude' is easily comprehended, the exact range of conditions it prohibits is harder to define. United States v. Kozminski, 487 U.S. 931, 942. The Supreme Court has observed, however, that "the phrase 'involuntary servitude' was intended 'to cover those forms of compulsory labor akin to African slavery which in practical operation would tend to produce like undesirable results.'" Id. (quoting Butler v. Perry, 240 U.S. 328, 332; see also United States v. Shackney, 333 F.2d 475, 485 (2d Cir. 1964). We have added that the ban on involuntary servitude "was to abolish all practices whereby subjection having some of the incidents of slavery was legally enforced..." Shackney, 333 F.2d at 485.

See Immediato v. Rye Neck School District

It is obvious that the Thirteenth Amendment claim would not meet the requirements provided by the Supreme Court.

[RedCon1]

32. As I said,

A lawyer would be able to make that which is obvious seem less so. I'm sure if the judges who made such decisions were compelled against their wishes by their government to set aside their careers as Supreme Court justices and go fight in a war for that same government, they might adopt a more flexible interpretation of just what the framers intended by the 13th and 9th Amendments. The fact that slavery is mentioned separately from involuntary servitude in the 13th Amendment suggests that there was a notable difference between the two at the time of the writing. My understanding of the difference is that, at the time, involuntary servitude was what happened to poor white people that couldn't pay their bills and slavery was what happened to captured Africans. I do not believe that it is as obvious as you imply that the courts definition/requirements of involuntary servitude do not meet the conditions created as a result of breaching a legal contract and, thereby, forcing thousands of men and women to perform life threatening work against their will. I do not believe that I have expanded the scope of the 13th amendment in referring to it under these circumstances and the exact range of conditions it prohibits do not seem hard to define either. What is clear to me is that there is a big difference between a bunch of college kids trying to get out of community service and thousands of American citizens being coerced by their government to perform life threatening labor.

[Scooter24]

33. You

argue that the Thirteenth Amendment should be the majority standing in this case. I am saying that Congress' power under Article I, 8 is clear in this matter. The same argument that you state was proposed to the Supreme Court in Arver v. United States and the court simply rejected that line of reasoning-

"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement." Arver v. United States.

XIII Amendment Sec. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

"...the term 'involuntary servitude' necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion." U.S. v. Kozminzki 487 U.S. 931

So using this paradigm, how can one dispute the logic behind military conscription? After all, by using your definition, we can easily determine that the government has no authority to conscript its citizenry for purposes determined by Congress.

I, however, contend that the power to conscript people in the clauses listed under Article I, 8 will be the key factor in keeping these soldiers in the military. Their Due Process rights are not being infringed because the Government can show that their actions are both "Necessary and Proper." That power should be supreme and I am willing to bet the court will agree.

[RedCon1]

36. Regarding Arver V. United States:

"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement." Arver v. United States.

War, to my knowledge, has not been "declared by the great representative body of the people." One would think that the imposition of what is obviously involuntary servitude, an unconstitutional act, upon the people of the nation is a significant enough event to only occur only after an equally significant legal declaration of war against a foreign power. In the absence of such a formal declaration, the stop loss seems more like a politically expedient action designed, not to protect the nation from an enemy, but to protect the political career of a President.

<"So using this paradigm, how can one dispute the logic behind military conscription? After all, by using your definition, we can easily determine that the government has no authority to conscript its citizenry for purposes determined by Congress.">

What's more, I am not talking about conscription, an action that calls upon all males within the legal age parameters to perform a "supreme and noble duty", I am talking about a policy of servitude that is applied unequally to one small segment of the population in order to allow the remainder of the population of eligible men and women to avoid performance of their "supreme and noble duty."

<"I, however, contend that the power to conscript people in the clauses listed under Article I, 8 will be the key factor in keeping these soldiers in the military. Their Due Process rights are not being infringed because the Government can show that their actions are both "Necessary and Proper." That power should be supreme and I am willing to bet the court will agree.">

The actions of the Government in this case may or may not be Necessary and Proper; however, either way you look at it, the due process rights are being infringed upon in the execution of this policy. In the absence of a formal declaration of war, the power to renegotiate the legal contracts entered into between citizens of the United States and the United States is not Necessary and Proper, it is simply expedient and convenient. I have little doubt that you are correct, that the court will continue its broad interpretation of the Necessary and Proper clause in this case and will, thereby, facilitate the perpetuation of a policy that forces a small segment of the population to do what the majority of the population would be unwilling to do, risk life and limb for a Political agenda.

[Solly Mack]

20. Sorry, no. My husband is military.... for a long time now

and your understanding of Stop-Loss is inaccurate.

Stop-Loss can be either an XO (President) or handed down by the DA (Department of the Army).

It IS in the contracts signed by soldiers when they enlist. It DOES apply to ALL enlistments, to include the initial enlistment.

There are no grey areas.

There is a rule of Stop-Loss and a check if the rule was held would be an options for these soldiers...(though a sympathetic public is their best bet)

such as:

Stop-Loss must be reviewed every year (as it's only a term of one year) Keeping in mind that after a review it can be opted for another year. If it is, you remain obligated by your enlistment committment.

Stop-Loss can be directed at certain MOS and it can be directed widespread. Or both at the same time. (General and MOS driven)

The soldiers might check to see if the constant back and forth of MOS directed Stop-Loss changed their situation. Highly unlikely though. (If their ETS fell into a favorable time-frame where someone didn't cross their i's or dot their t's. IOW.)

Current Stop-Loss is good until the year 2067. Yes, that's legal. Just means every year until 2067 Stop-Loss will be reviewed for another year. Naturally, that can change at anytime.

I've seen people get out. I've seen them stay 3 years beyond their ETS date and then finally get out...I know of people hitting 3 years beyond on Stop-Loss and still serving though their original ETS date has come and gone (3 times).

I've seen those hitting retirement get pulled back in by Stop-Loss.
I've seen people retire on time.

I've not seen a single National Guard spared Stop-Loss. Though it does happen.

[driver8]

18. First Gulf War

"During the first Gulf War (1990), all of the services implemented "Stop Loss,"preventing pretty much anyone from separating, for an entire year."

-------

I was in the Navy during the first Gulf War and I don't remember anyone not being allowed to get out -- I was on an aircraft carrier and worked in a critical rating. Everyone that wanted to left the Navy, and our contracts were 6 active and 2 Inactive Reserve.

[bluestateguy]

14. I wish them luck, but they will probably lose

1) the courts are usually very deferential to the executive branch in wartime.

2) Stop losses and/or IRR callups are allowed in the enlisment contract, and there is a lot of legalese in the contract allowing the military to basically keep you as long as they want to.

[Ima]

17. 60 minutes tonite

They want a guy back who got out on disability years ago.

They also called back...........................
A 55 year old, 4ft 11 inch, out 20+ years WOMAN!! Thats just a little old for a female.

[steely]

37. I saw just enough of that to scare me...

I resigned some time ago (yrs) - wonder if they'll call me?
Other than the disability, we have some things in common.

yikers

uh, didja catch the name of that lawyer??

[hadrons]

21. Those guardmen still support the war mind you ....

"You should know I'm not against the war," said David W. Qualls, one of the plaintiffs and a former full-time soldier who signed up in July 2003 for a one-year stint in the Arkansas National Guard but now expects to be in Iraq until next year.

"This just isn't about that. This is a matter of fairness. My job was to go over and perform my duties under the contract I signed. But my year is up and it's been up. Now I believe that they should honor their end of the contract." Some military experts described the soldiers' challenge as both surprising and telling, given the tenor of military life, where soldiers are trained throughout their careers to follow their commanders' orders.

This guy even shoots himself in the foot: My job was to go over and perform my duties under the contract I signed.

That contract you signed contains the stop-loss clause you're fighting against (much like the chimp you voted for supports keeping you in Iraq) ... I hope they succeed (I don't believe they will,) not for David W. Qualls sake, but for some of the troops who weren't fooled by the jackass-in-chief

[colonel odis]

35. "i support the war. i just want somebody else to fight it."

why don't some of the fine young men and women at free republic step up and offer to take this gentleman's place?

[VolcanoJen]

22. Kick

:dem:

[maddezmom]

24. and another kick

missed it the first time. :)

[GinaMaria]

25. becoming more difficult to call it a Volunteer military

sin't it chimpy? These people don't sound like they are there voluntarily.

[Solly Mack]

34. OK. I talked to NG here in Germany last night

They are deployed here as part of the "war on terror"

Seems some of these men and women were told "Join the NG for a year. See how you like it."

Then WHAM. Activation (to Active Duty) and hit with Stop-Loss.

Governments side is: "They were activated, so those rules now apply"
NG side is: "We signed a 1 year contract and a 1 year contract only"

Seems the government was handing out 1 year contracts to some NG.

Sounds like bait and switch to me.

So this might help their cases....though there is a whole lot of misunderstanding on DU as to what Stop-Loss is and how it is applied. Both regarding the NG and Active Duty soldiers.

FYI: Soldiers fall up under the UCMJ. Meaning: What "rights" a soldier has is determined by the UCMJ for the purpose of legal matters...to include deployments and contracts. Now, nothing in the UCMJ can be "unconstitutional."...so an arguement would have to be made that the UCMJ held unconstitutional laws/rules/regulations. As well as arguing that the DA abused his power with the UCMJ. Mainly regarding Stop-Loss and it's application.

Keeping in mind that the UCMJ has been amended over the years for just those reasons.