Monday, December 13, 2004

Re: Fooling and Signing Up Reservists and National Guardsmen For Iraq

December 13, 2004
Re: Fooling And Signing Up Reservists and
National Guardsmen For Iraq.
From: Dean Lawrence R. Velvel

Dear Colleagues:
A blog posted here on Monday, December 6th mentioned the widely known fact that some soldiers are claiming that the Executive’s action in forcing them to continue serving in Iraq is unlawful because their contractual terms of enlistment have expired. It was said here that the soldiers will lose in court, because the gutless judiciary will not rule against the Executive during a war. It took the courts less than 48 hours to prove that this rather elementary prediction was correct. On Wednesday, December 8th, Washington, D.C. Federal Judge Royce Lamberth denied a so-called preliminary injunction against sending one of the soldiers back to Iraq. According to a newspaper report, and putting the matter in lay terms rather than in legal gobbledygook, Lamberth said there is no way the plaintiff could prevail. Lamberth, for whom there was some hope a number of years ago, has in recent years shown himself to be just another judicial shill for the Executive, and has now done so again.

I have read some of the papers in the case, and have read about the general situation previously. Here, then, is one person’s take on what is going on. It is a take that is expressed in plain English, not in the legal gobbledygook that enables the government to get away with murder, or, in this instance, with ordering people to their possible deaths.

In this country people sign up for the Reserves or the National Guard because they need extra money to feed their families or for school -- it usually ain’t the rich who sign up for this, baby. They are told their service will involve only a small commitment like some weekends and two weeks in the summer, and are told that their commitment runs for only certain periods of time, e.g., for only one year under the so-called Try One program. When joining up, they sign contracts that say things like "I have enlisted for a period of one year, 0 months and 0 days." Afterwards, having been told by recruiters that their service will be only minimally invasive (to use a medical term and make a bad pun too) and will last only a fixed period, they suddenly find themselves in Iraq, in danger of being killed, and ordered to remain in that situation far beyond what they thought was the fixed end of their term of service. When this happens, most do not raise legal objections because conformity is the military and human norm. Those who do make objections are met with a barrage of legal arguments purporting to show that they knew of and agreed to the possibility of extended service in a killing zone. (Fittingly, barrage is a military term.)

The barrage comes down to this, in plain English. When they signed up, the soldiers (cum victims?) signed a contract. Like lots of government documents -- and much on the order of the completely unreadable Internal Revenue Code -- the contract contains legal phraseology meaning that the terms of enlistment can be altered if certain events occur on or in connection with this or that section of the federal statutes -- so that one has to read the cross referenced federal statutes to find out what the true situation is. The recruit thinks he is signing up for a fixed term, he signs a paper saying this, but in reality he or she may possibly be signing up for something very different -- for a couple of years in Iraq, for example.

Maybe this whole process wouldn’t be so obnoxious if recruits had Philadelphia lawyers with them to explain all this to them. But people who can afford Philadelphia lawyers don’t sign up for the volunteer service, and people who sign up for it can’t afford and wouldn’t dream of using any lawyer in connection with this, let alone Philadelphia ones.

Harvard’s sainted Felix Frankfurter once wrote that citizens must turn square corners when dealing with the government. He ignored that historically the more common case is that the government does not turn square corners when dealing with citizens. That is what is going on here. The government encourages the poor and others of the less well off to believe they are signing up for fixed periods of minimal duty, and the next thing they know they face a couple of years in Iraq.

Apparently, however, what is not realized by some bloke in, say, the West Virginia mountains when he signs up, and what is not recognized by lots of the other uneducated people who sign up, is all plain enough to Judge Royce Lamberth. For, according to an Associated Press story, he said the contract was clear enough. Well, I imagine it is clear enough to Lamberth. He is a lawyer, and a judge no less. He is used to fine print, to cross referencing and to language that appears to give with one hand while actually taking away with the other. But I would think that to the often poorly educated nonlawyer who signs up for the Reserves, to the guy who is not terribly literate, this language in a forbidding looking legal document is all likely to be just gobbledygook. He thinks he has signed up for one year or two years because the paper he signs does say so, and the recruiters tell him so. But really he has been fooled into signing up for Iraq and all the other Iraqs we may end up fighting. And the gutless Lamberths of the world, a whole federal judiciary full of them, do not dare to cross the Executive by stopping the fraud practiced on the more vulnerable part of our citizenry.

But maybe all this is good, not bad. After all, somebody has to fight our wars, and it is always the poor and uneducated (or minimally educated) who do so. You aren’t going to find the daughters of George Bush or Dick Cheney fighting in Iraq. Nor are you going to find the sons and daughters of our 535 federal legislators fighting there -- there has been, I believe, exactly one son of a Congressman in Iraq. (The legislator is from Montana, if memory serves.) And, as said, the rich don’t join the Reserves. So, since we do need to have soldiers to fight our Bush family wars and other ones too, and since it is the poor who are combat soldiers, perhaps we should thank God that we still have ways of fooling the poor into joining up, and that we still have judges like Royce Lamberth who can readily understand what the guy joining up from Appalachia does not.*

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