Soldier's lawsuit targets stop loss orders

Vol. 1 No. 14 August 18, 2004 Lead Story

By Richard Muhammad

Devotion to God and country not withstanding, military service is a contract, not indentured servitude, argue lawyers for a decorated Army vet suing the military over a policy that would keep him in uniform after his one-year hitch expires.

John Doe, a married reservist in the California Army National Guard with two children, is challenging the Defense Department’s controversial “stop loss” orders. Stop loss orders keep servicemen in the armed forces beyond the time they agree to serve. It has been called a “back door draft,” given that servicemen cannot decline Uncle Sam’s invitation. It applies to those whose tours of duty expire and to those who should be eligible for retirement. The soldier's actual name was not used in the suit to avoid any retaliation.

“People don’t surrender (all) rights when they go into the military. The government can’t hold you indefinitely,” said Marguerite Hiken, co-chair of the Military Law Task Force of the National Lawyers Guild. “If the war on terrorism never ends; stop loss doesn’t end. These people never get out. The military is saying we control you completely,” she said.

John Doe’s lawsuit, filed Aug. 17 in San Francisco at the federal court in the Northern District of California, argues that the stop loss policy, based on an executive order issued after Sept. 11 terror attacks, doesn’t apply to enlisted personnel. It further argues that the order is only valid in a time of war legally declared by Congress and that the Army cannot simply hold soldiers hostage. Defense Secretary Donald Rumsfeld, Army Secretary Les Brownlee and John Doe’s company commander are among defendants named in the lawsuit.

John Doe's lawyers say 12 years of exemplary, decorated military service, with nine years of active duty is enough. His stop loss order could mean two years in Iraq, though John Doe’s contract runs out in December, said attorneys Michael S. Sorgen and Joshua Sondheimer. Doe has also already served a tour of duty in the war-torn nation.

Under a previous stop loss order, Doe was told that the Army would have reactivation dibs on him until the year 2043. That order was lifted when that term of enlistment ended. Doe re-upped for a short hitch in the reserves. In July, Doe was told his stint had been extended for two years and his National Guard unit was mobilized for service in Iraq.

“This lawsuit seeks to stop the forced retention of men and women like John Doe who have already fulfilled their service obligation to the country. Their enlistments should have ended, and they should now be entitled to return to their families,” said Atty. Sorgen. John Doe chose a limited one-year commitment in the reserves in large part to spend time with his family, the lawyers explained.

“The burden of maintaining the high troop levels that we have shouldn’t be on the shoulders of the people who have fulfilled their service obligation,” added Atty. Sondheimer.

“Perhaps over 100,000 servicemen have been subjected to stop loss, since the program started. Tens of thousands may well have had their enlistments already extended and others may remain subject to stop loss but haven’t yet had their enlistments extended,” Atty. Sondheimer explained. The government seems to think that there is no limit to how many times stop loss orders can be used, he said.

According to the Department of Defense, the Army is the only branch now utilizing stop loss orders. The secretary of defense delegated stop loss authority to the individual secretaries of the armed forces, said Lt. Col. Pamela L. Hart.

The “stop loss program is authorized by statute and allows the military services to retain trained, experienced, and skilled manpower by suspending certain laws, regulations, and policies that allow separations from active duty, including retirement,” she explained in an e-mail response to questions. About 20,000 soldiers are affected by stop loss, Lt. Col. Hart said.

“According to the secretary of defense, there are no plans to reinstate the draft. This is an all-volunteer Army. I cannot speculate on ‘what-would-happen-if’ type questions,” responded Lt. Col. Hart, when asked if a draft would be necessary if stop loss orders were ended. The policy is continually reviewed, said the Defense Department spokesperson. Exemptions already exist for soldiers “involuntarily discharged and those waived by the service because of specific circumstances,” she said.

Some 50,000 guard and reserve troops are in the U.S. Central Command theatre, which includes Iraq and Afghanistan, said Major Michael McLaughlin, another military spokesperson. He did not have their breakdowns in each country. Approximately 145,000 soldiers – some 19,000 troops in Afghanistan and 125,000 in Iraq – are in the embattled region.

The military is saying whatever soldiers signed up for is meaningless, observed Nancy Lessin, of Military Families Speak Out. Many soldiers feel betrayed and complain of tremendous pressure, said Lessin. Her 1,600-member anti-war group is composed of those with loved ones in the armed services.

“The ability of the military to issue stop loss orders is being used to get soldiers to ‘voluntarily re-enlist.’ It’s not voluntary at all,” stressed Lessin. Many soldiers have been told “ ‘you can re-enlist, and if you do, we’ll make sure you have some duties but they’ll be in the United States, you won’t be going back to Iraq. But if you do not re-enlist, we are going to stop loss you can make sure that you go back to Iraq,’ ” she said.

“In this situation where our loved ones have been sent off into a very reckless military misadventure, into a war that should never have happened, into a war that is in fact about oil markets and empire building, it just sets a whole different context for what families go through,” she said. Her stepson, who served in Iraq, is in the military reserves and could be sent back any time over the next two years.

Michael Hoffman was three days away from leaving the Marine Corps when he was stop lossed and sent to Iraq. There was no notice, no extra money and, of course, no guarantee that he would survive combat. Hoffman feels lucky he made it out.

Hoffman said during his enlistment it wasn’t clear that he had committed to eight years. As he signed the last line of the contract, Hoffman said a gunnery sergeant mentioned that it was four years active duty and another four years possible call-up. But, he recalls, the sarge saying, “You won’t be called unless World War III breaks out.”

Hoffman had other illusions. “I just thought you leave the military and you can get called back if they need you. With the stop loss orders, you never leave. They extend your contract, which is something nobody really understands when they first sign-up,” said Hoffman, who has been out of the Marines for a little over a year. He lives outside of Philadelphia.

The emotional turmoil aside, Hoffman feels fortunate his extension was only a few months and he didn’t lose anything. Other soldiers, including a good friend, have lost jobs and face hardship because stop loss wrecked plans, he said. Hoffman’s friend lost a good job with benefits and was forced to take his wife and child to live with family members after his departure from military service was delayed.

“The story about my friend is just one, there are many stories. These extended deployments, the stop losses are really ruining peoples lives,” said Hoffman, who is co-founder of Iraq Veterans Against the War.

Atty. Sondheimer expects the initial petition against stop loss to be dealt with over the next month. He also expects to appeal any judicial loss, and expects more soldiers to challenge Uncle Sam’s latest gift.

“Our client really has given great dedication to the military and to the country,” said Atty. Sondheimer. “When someone like that says ‘enough enough, I signed up for a year and that’s all I should have to serve,’ that’s really a major statement from someone who has been so dedicated to the military.”
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