Soldier Sues to Remain at Home

Amid yellow ribbons and farewell banners at a ceremony for Iraq-bound troops here last week was one anonymous combat veteran waging a last-minute federal court battle to stay home.

The California National Guard soldier, identified as “John Doe” in a lawsuit filed Oct. 1 in U.S. District Court in Sacramento, contends that the military’s controversial “stop-loss” program to involuntarily extend enlistments is illegal when applied to National Guard soldiers, about 40,000 of whom are deployed in the U.S. occupation of Iraq.

Coupled with a similar action filed Aug. 17 in San Francisco that involves another California National Guard soldier ordered to Iraq, the lawsuit is seen as the first serious court test of the stop-loss program, in which thousands of National Guard and reserve troops have been called on to meet increasing military manpower needs in Iraq.

“Ultimately, this is about fairness,” said San Francisco attorney Joshua Sondheimer, who represents both California soldiers. “It is not fair or appropriate to put the burden of having an expanded military on the backs of those people who have already done their duty.”

Stop-loss has become a part of the presidential debate, with Democratic candidate John Kerry calling the program a “backdoor draft.” And the opposition is not strictly partisan. Arizona Sen. John McCain and other Republicans have also spoken against the practice.

But Lt. Col. Michael Jones, chief of recruiting and retention at National Guard headquarters in Washington, said the two soldiers represent the views of a tiny minority of those whose terms of service have been involuntarily extended.

“It is only two individuals out of 200,000 who are taking this action,” said Jones, who also said he doubted that any veteran soldiers would be surprised or caught unaware by the involuntary call to duty.

“It’s like a doctor who smokes and later claims that he didn’t know that cigarettes cause cancer,” Jones said. “Every veteran knows he faces possible active duty.”

The twin California cases are being taken seriously in Washington, where the Justice Department assigned veteran government attorney Matthew Lepore to handle its arguments.

“Stop-loss is at the heart of the military decision-making process,” said Washington attorney Matthew Freedus, a former Navy lawyer and specialist on military law. “If anybody gets traction on this, I think there would be a flood of cases.”

That would be bad news for National Guard recruiters. For the first time since Sept. 11, 2001, the nation’s oldest reserve fighting force has not met its recruiting goals. Seeking a force of 350,000 troops by September, Army Guard recruiters fell more than 7,000 short.

Andrew Exum, a former Army captain in Iraq and author of a recent book, “This Man’s Army,” critical of U.S. military policy, says there is a well of discontent among soldiers caught in the stop-loss program

“Several are former soldiers of mine in Iraq right now,” Exum said. “I think there is widespread dissatisfaction, especially among the soldiers who have already done one, two or even three combat deployments since 9/11 and now find themselves back in the Middle East for upwards of a year.”

Both of the California soldiers now in federal court are combat veterans who signed up under the National Guard “Try One” program reserved for veterans. The program, offered nationwide, allows the recruit to bypass basic training while enjoying military education and family medical benefits on a one-year trial period.

Before the soldiers’ one-year enlistment expired, however, they were called up under a stop-loss program for 18-month tours that include training and deployment in Iraq.

The military contends that this involuntary extension of troops was authorized by Executive Order 13223, issued by President Bush on Sept. 14, 2001, in reaction to the terrorists’ attacks.

Attorneys for the soldiers, citing the report of the Sept. 11 commission that found no evidence of any “collaborative operational relationship” with the Al Qaeda terrorists, claim the executive order did not cover “nation-building service in Iraq.” In the absence of any declaration of war by Congress, the soldiers claim the involuntary call is a violation of their enlistment contract.

“This is not a frivolous lawsuit,” said Michael Noone, a military law specialist at Catholic University of America and a former judge advocate in the U.S. Air Force. “I had assumed the government had an ironclad case, but the complaint looks valid on its face. I’m really curious how the government will respond.”

Attorneys confirmed that the soldier in the Sacramento case is a member of the Sacramento-based 2668th Transportation Company, which left Wednesday for training at Ft. Lewis in Washington state. The attorneys gave little additional information about the soldier for fear that, if identified, he would face retribution from his superiors.

The only personal detail in the lawsuit is that the soldier is a combat veteran, “married and the father of two young children, and is very involved in the lives and education of his children.”

After Chief U.S. District Judge David F. Levi in Sacramento denied a request on Tuesday for an immediate temporary restraining order, the soldier joined his 173 fellow transportation company colleagues at the armory send-off, featuring a pep talk by a California National Guard general and a potluck family supper. Another hearing on the case is expected before the soldier departs for Iraq in late December.

At the armory ceremony, company commander Capt. Torrey Hubred, 36, said he had no idea which of his soldiers initiated the court action.

“I’ve intentionally tried not to single anyone out,” Hubred said. “As far as I know, any of the soldiers who came to me with issues, we were able to work them out.” Hubred said all the unit soldiers were present and accounted for at the Sacramento armory on Tuesday.

At the emotional ceremony, a giant chocolate cake, baked for the occasion and decorated with camouflage frosting and plastic soldiers, was topped with the words: “God Bless the Troops of the 2668th Transport.” Except for Hubred, none of the other soldiers and families who attended appeared to be aware of the pending court challenge.

Some of the younger soldiers seemed excited about their assignment. “I’m happy to go and get my experience as a competent leader,” said Torrance native 2nd Lt. Joseph Ku, 22.

But others, including Vietnam veteran Staff Sgt. Phil Daneau, viewed the assignment more warily.

“I was not expecting to do this at this point in my life,” said Daneau, a Sacramento County public assistance official who, at 56, is the oldest of the transportation company soldiers being sent to Iraq.

“This is certainly not what I had planned for,” said Daneau’s wife, Carla, 57, who waited anxiously at home during her husband’s three tours in Vietnam and does not relish the idea of doing it again nearly four decades later.

“We’ve got a very upset daughter and a lot of other upset friends and family,” she said.