Lawsuit questions ‘stop-loss’ authority

Tom Philpott

Without evidence that the U.S. occupation of Iraq is protecting America from terrorism, the Army has no legal basis to use “stop-loss” authority to keep thousands of soldiers on active duty and serving in Iraq involuntarily, according to a lawsuit filed this month in federal court.

Brought on behalf of a California National Guardsman facing a second stop loss in the past year, the lawsuit argues that the Bush administration and Army must show a link between occupying Iraq and preventing the terrorism threat that killed almost 3,000 Americans on Sept. 11, 2001.

The link is critical, say lawyers for Sgt. “John Doe” because Army stop-loss authority flows from President Bush’s Sept. 14, 2001, executive order authorizing a Ready Reserve call-up to respond to “the continuing and immediate threat of further terrorist attacks on the United States.”

Given that no weapons of mass destruction have been found in Iraq, and that a sustained insurgency is taking American lives daily, critics have disputed the president’s contention that the invasion of Iraq was a victory in the war on terrorism.

Even if it was, in light of Saddam Hussein’s capture and dissolution of his regime, Iraq no longer poses a threat, which removes any justification to use stop-loss to sustain the U.S.-led occupation, the lawsuit contends.

Iraq “has a new interim government” and is seen again as a sovereign nation, lawyers for Doe noted in asking the U.S. District Court for the Northern District of California to declare current Army stop loss orders invalid.

Their brief also argues that involuntary extension of Doe’s enlistment contract violates his right to “due process” against arbitrary personal restraint, violates terms of that contract, and unlawfully extends time on active duty without proof of need, either from war or national emergency, and lacking proper congressional authorization.

“We actually think we can win this case,” said Michael Sorgen, one of two San Francisco-based attorneys representing Doe, whose real name is withheld from the filings to protect his privacy and that of his family.

Doe enlisted in 1992 and has served nine years on active duty in the Marine Corps and Army. He served during the invasion of Iraq, seeing combat daily for three weeks.

An initial stop loss order kept him in Iraq several months beyond his last regular Army enlistment contract. He later was treated for post-traumatic stress syndrome.

Last December, Doe was honorably discharged.

Though committed to spending more time with his wife and two daughters, ages 6 and 3, Doe was persuaded by a recruiter to join the California National Guard under a “Try One” program. It allows a soldier to serve one year in the Guard before deciding on a longer-term contract.

Doe was seven months into his “Try One” contract when his unit — Bravo Company of 1st Battalion, 184th Infantry Regiment, based in Dublin, Calif., was notified it fell under a new stop-loss order. In mid-August, it left for six months’ training at Fort Bliss, Texas, before departing for Iraq.

Doe, having filed his lawsuit, is temporarily excused from that deployment.

The decorated combat veteran, who earlier trained and served with Special Forces, wants to avoid a second tour in Iraq and involuntary extension of his enlistment by at least two years.

The stop loss order constitutes “a serious infringement on his liberty,” says the brief filed for Doe. His lawyers are associated with the National Lawyers Guild’s Military Law Task Force, which counsels service members on legal options and their civil rights.

Tom Philpott can be contacted at Military Update, P.O. Box 231111, Centreville, Va. 20120-1111, or by e-mail at: