Extending Tours In Iraq.

Dear Colleagues:

Attached is the latest article in The Times about the Pentagon’s practice of trying to insure that we have enough men in Iraq by extending tours of duty beyond the times that people signed up for military service. The attached article is about soldiers who are bringing suit over this practice. No doubt they will lose because, when it comes to fighting a war, the courts almost never have the guts to force our militaristic Executive Branch to follow the law, at least not during the war itself. (This is true notwithstanding the Supreme Court’s recent but very vague decision about Guantanamo.)

Nonetheless, I wish to point out two things, one of historical relevance, and one of current and future relevance. One is that, during the Revolution and the Civil War, probably the two most important wars in our history -- and certainly two of the three most important if you include WWII in the count -- our armies were regularly faced with the expiration of tours of duty of vast numbers of soldiers at times when this would have wreaked havoc. Washington and Grant were both faced with the possible extensive dissolution of their armies. But the government did not cheat the soldiers by compelling them to stay beyond their contracted tours of duty. Other ways were found to solve the problem. Cheating the soldiers is, rather, a product of the immoral intellectual pygmies who run our government today, and shows how militaristic the nation has become. To think that such cheating was not necessary in nation-shaping wars like the Revolution and the Civil War, but is being used in a monstrosity like Iraq . . . . . .

The other point is that, without getting into the long history and the pros and cons of the constitutional doctrine regarding whether Congress can delegate its powers to the President (however bad a human being he may be (viz Johnson, Nixon, George W. Bush)), suffice it to say here that Congress, in its war resolutions, has delegated to Bush the power to unilaterally decide when, where and against whom we shall fight wars. Under the congressional resolutions, Bush could decide to fight Iraq, Iran, North Korea, Syria and anyone else he chooses to say is terroristic, and could indeed fight all of them at once. So who knows where the Pentagon’s practice of extending tours of duty beyond contracted times could lead? Nobody can even guess the answer to this except maybe Bush, Rumsfeld and, possibly, the impending so-called Attorney General who supervises the writing of and signs memos supporting torture.*

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*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Eight Soldiers Plan to Sue Over Army's Stop-Loss Policy
December 6, 2004 By
MONICA DAVEY

MORRILTON, Ark., Dec. 3 - The eight soldiers come from places scattered across the country, from this small town an hour northwest of Little Rock to cities in Arizona, New Jersey and New York. In Iraq and Kuwait, where they all work now, most of them hold different jobs in different units, miles apart. Most have never met.

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.

"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.

These soldiers' public objections are only the latest signs of rising tension within the ranks. In October, members of an Army Reserve unit refused a mission, saying it was too dangerous. And in recent months, some members of the Individual Ready Reserve, many of whom say they thought they had finished their military careers, have objected to being called back to war and requested exemptions.

Mr. Qualls, 35, who says he sometimes speaks his mind even to his superiors, is the only one among the eight whose real name will appear on the lawsuit against the Army's military leaders. The rest, who fear retribution from the Army - including more dangerous assignments in Iraq - are described only as John Does 1 through 7. Aside from the shared expectation that they would have gone home by now, these soldiers' situations could not be more varied, as interviews with their families made clear.

One is a member of an Army band, ordered to travel Iraq this year performing music. Another is an Army reservist in a New Jersey transportation company with 18 years of service behind him. Another is an Arizona National Guardsman in his 20's, whose wife says he sounded subdued, even tearful, when she spoke to him in recent days on a phone line from Kuwait. "The whole morale in his unit is on the floor," she said on the condition that she not be named, to avoid revealing her husband's identity.

Although Army officials said they could not comment on a lawsuit, particularly one they had not yet seen, they described the stop-loss policy, which was first instituted during the first Persian Gulf war more than a decade ago, as a crucial lesson learned in Vietnam, where troops were rotated out just as they had become acclimated to a treacherous environment.

"If someone next to you is new, it can be dangerous," said Lt. Col. Pamela Hart, an Army spokeswoman. "The bottom line of this is unit cohesion. This way, the units deploy together, train together, fight together and come home together."

Some soldiers like Mr. Qualls, though, say they wonder if the rule is not just another way to keep troop numbers high, particularly at a time when the military has been stretched thin and the number of troops in Iraq is expected to rise still more, to 150,000, in the coming weeks.

In recent months, at any given moment, the stop-loss policy has affected about 7,000 soldiers who had been planning to retire, leave the military or move to a different military job. The rule affects soldiers whose enlistments are scheduled to end within 90 days before their unit is deployed, those already deployed, and those whose term would end up to 90 days after their unit returns. On Friday, Army officials said they did not know the total number who had been affected so far. No date has been announced to end the policy.

Jules Lobel, a lawyer for one of the eight soldiers, described the central complaint this way: They were fraudulently induced to sign up, Mr. Lobel said, because nothing in their enlistment contract mentioned that they might be involuntarily kept on.

But experts not involved in the case say the government has generally been granted broad legal authority when it comes to the obligations of soldiers in matters of national security and times of conflict.

"The courts have traditionally ceded to the military," said Gary D. Solis, who teaches law at the United States Military Academy at West Point. "Even if the gents win at the trial level, the government is not going to quit. They cannot afford to. There is a potential cascade effect here."

Phillip Carter, a former Army captain and an expert in military and legal issues, said: "Rarely have we seen people win such cases. At best, this is symbolic protest."

The soldiers and their families, however, say they do not see it that way. Their hopes are far more practical. They want to go home.

Mr. Qualls was one of the first soldiers to find Mr. Lobel and Staughton Lynd, another lawyer now working with the Center for Constitutional Rights on the case and whose antiwar activities date to the Vietnam era. As Mr. Qualls wandered the Internet one day in Iraq, he said, he came across news reports of a National Guardsman in California who this summer had become the first to challenge stop-loss in court.

Mr. Qualls said he immediately began sending e-mail messages that guardsman's lawyer, Michael S. Sorgen, and was eventually referred to Mr. Lynd and Mr. Lobel, who were separately beginning to hear from other soldiers who had found them in recent weeks in a variety of ways.

Some of the soldiers e-mailed or called the National Lawyers Guild Military Law Task Force or the G. I. Rights hot line and were referred to the lawyers, Mr. Lynd said. The wife of one soldier said she handled all the research for his case herself, studying his enlistment contract and newspaper clippings and finally coming across Mr. Lynd's name. And a 54-year-old mother from Long Island said she began making calls on her son's behalf, first to her representatives in Congress and later to anyone she could find.

"My son," she said, "is not someone afraid to follow orders and fulfill his obligation. He's a very compliant soldier, but he feels like he's being stabbed in the back."

One soldier's wife, from New York City, said she received an e-mail message from Military Families Speak Out, an antiwar group, about the possibility of a lawsuit, and urged her husband to be part of it.

Asked whether antiwar forces were instigating this lawsuit, Mr. Lobel, who like his co-counsel describes himself as openly opposed to the war in Iraq, laughed and said no. The soldiers and their families came on their own, he said.

They were desperately looking for some way to solve their situations, and it looks like most of the people they found who were trying to counsel or represent people in their situation were antiwar people," Mr. Lobel said. "But to me, the most interesting aspect of this whole thing is that it's not a question of antiwar or pro-war. It's not a question of red states or blue states. This stop-loss question is just about fairness."

As part of a rest-and-relaxation leave allowed some soldiers, Mr. Qualls arrived at his modest Morrilton home just in time for Thanksgiving supper with his wife, Cheryl, and their daughter, Kelly.

Seated at his computer on Friday, he fiddled with a pen as he pondered whether he might face retribution for taking legal action, something he says he told his unit commanders nothing about before he left. He said his family had struggled financially and emotionally with him gone, and he has to put them first now.

"The other thing," Mr. Qualls said, "is you've got thousands of people over there in the same situation as me and somebody's got to do something. Why not have it be me? I can't worry about what people will say."

Mr. Qualls is due back at his radio post on a base north of Baghdad this coming weekend. He said he hoped a judge would issue a temporary restraining order and allow him to stay home. But if he loses, he said, he will get on that plane.