Two members of the California National Guard have filed a suit
contending that 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 Wednesday for training
at Ft. 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
Attorneys for the soldiers, however, say that 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, the San Francisco attorney who is handling these
cases, told us 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 that the policy may be not only objectionable
but illegal. We are especially pleased that 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.