Thursday, April 07, 2005

Explaining Stop Loss practices : Emiliano Santiago v Secretary of State Donald Rumsfeld lawsuit April 2005, Seattle, WA

Yesterday the 9th circuit district Federal court heard and ruled on Emiliano Santiago's lawsuit challenging his Stop Loss and orders to deploy to Afghanistan with his unit. Apparantly it was a 'no brainer' for the judges as they took only a couple of hours to come back with a denial. Friday, this week, Santiago is off to Afghanistan.

The particulars are that he is Oregon National Guard, completed his 8 year contract BUT got Stop Loss orders a couple months before his contract expiration date. Effect; he's 'extended' for as long as the Stop Loss is in effect. And since no one seems to know who calls the shots on how long a stop loss can involuntarily keep soldiers in combat, be they active, Reserve, National Guard or IRR; it would seem that any enlistment is of indefinite duration now. I will be having more to write on the Santiago trial, but am borrowing a nifty explanation I read today for how the Stop Loss works.

Stop-Loss gets you 3 months out and 3 months in

Legally, Stop-Loss has to be reviewed every single anniversary year from it's original date of enforcement.

3 months before a deployment/PCS/ETS...and 3 months after a deployment/ETS...if you're caught in stop loss, chances are you will not PCS...and even if you do, the stop loss applies to your next duty station as well...

The 3 months in/out comes in this way:

Say a soldier is scheduled to get out in July 2005, but orders to deploy come down in June...1 month away from the soldier's ETS date...well, stop-loss has him (since it applies to 3 months prior to the deployment or ETS date), the army can let him get out...but they don't have to legally.

Now, let's say you just got back from deployment, have 5 months to go until your ETS date...but orders come down to deploy in the 2nd month after your return (within that 3 month window)...Stop-Loss has got you again...because it's still 3 months out/3 months in...Even though you now have 3 months to go before you ETS, orders that came within the 3 month window of Stop-Loss prevent you from ETS'ing. So you have to deploy...and your ETS date is put on hold for a year. (which just happens to be the length of your deployment)...

all the DoD/Pentagon has to do every year is say..gee, stop-loss is needed..and stop-loss gets renewed ...

the judge in this case is claiming it applies to the soldier because at the time the soldier was "active" when the orders came down...and it's the 3 months in/out that is the basis for that claim...

from the article

"In December, District Court Judge Owen Panner ruled in favor of the Pentagon, saying the Army's mobilization alert in April 2004 was tantamount to an order to active duty two months before Santiago's discharge. "

Oh, that outlandish, way in the future, date is SOP anytime Stop-Loss is put into's just CYA for the theory, Stop-Loss can be indefinite... and if deployments orders are timed right, a soldier can serve for years beyond their ETS date...

the thing is...that 8 year obligation is a contract and one that was being upheld until they last few the government is changing all that and effectively drafting those who have fulfilled their contracts. They are really screwing the guard and reserves with this the most but active duty is also being harmed by it.

Democratic Underground Forums - Pentagon's "stop-loss" policy on trial here

Article at Seattle Times;

Pentagon's "stop-loss" policy on trial here

Wednesday, April 6, 2005
By Alex Fryer
Seattle Times staff reporter

Emiliano Santiago, an Oregon National Guardsman, finished his eight-year enlistment last June.

But four months later the Army wanted to ship the Pasco resident to Afghanistan and reset his military termination date to Christmas Eve 2031.

Santiago, 27, decided to take it to court.

His lawsuit, Santiago v. Secretary of Defense Donald Rumsfeld, will be heard today in a special sitting of the 9th Circuit Court of Appeals in Seattle.

It will be the highest court review of the Army's "stop-loss" policy, which affects about 14,000 soldiers nationwide.

Of the 4,200 citizen soldiers in the state's 81st Brigade Combat Team, the deployments of 412 were extended through stop-loss, according to National Guard officials.

Santiago's legal battle has attracted national attention but is most loudly trumpeted by groups opposing the war, adding a political dimension to what his lawyer says is ultimately a case about fairness.

In November 2002, the Army implemented stop-loss to ensure reserve units ordered to active duty would not lose key personnel.

Army attorneys say the law gives President Bush the ability to "suspend any provision of the law relating to promotion, retirement or separation" of any soldier who is deemed essential to national security in times of crisis.

Santiago, whose unit refuels helicopters, learned the Army had added 26 years to his enlistment. The date was selected for "administrative convenience," according to court papers. Most guardsmen extend their commitment from three to six years.

Pentagon policy blasted

In legal briefs, Santiago's legal team blasted the Pentagon's policy.

"Conscription for decades or life is the work of despots. ... It has no place in a free and democratic society," the team wrote.

"If the government can break its promises to young men and women like Santiago, then the bedrock of our all-volunteer army — trust in the government's promises — will crumble."

Although the National Guard has failed to hit recruitment targets recently, an Army spokesman said stop-loss was not designed to buttress thinning ranks.

"Bottom line is that stop-loss has nothing to do with increasing the number of people in the Army and everything to do with effective units," said Lt. Col. Bryan Hilferty, an Army spokesman.

In December, District Court Judge Owen Panner ruled in favor of the Pentagon, saying the Army's mobilization alert in April 2004 was tantamount to an order to active duty two months before Santiago's discharge.

What's more, Panner determined that since other members of the Army National Guard had been serving on active duty since October 2001, the stop-loss policy extends to Santiago and every other citizen soldier.

Santiago appealed, and the three-judge panel is expected to rule in several months.

The case could go before the entire 9th Circuit or end up in the U.S. Supreme Court.

Unless the appeals court grants an injunction, Santiago, an electrical engineer, is scheduled to be shipped to Afghanistan within a week.

Santiago's lawyers initially tried to challenge the president's emergency mobilization to deploy troops in Afghanistan on the grounds that the country now has a democratically elected government.

Politics still part of case
Panner rejected that argument as political, and Santiago's attorneys dropped it. But politics are still part of the case.

Military Families Speak Out, formed in November 2002 to oppose the war in Iraq, is expected to demonstrate outside the courtroom.

The National Lawyers Guild, which called Bush's 2000 victory a "betrayal of democracy," has been involved in several stop-loss cases.

"We win if enlistment numbers go down," said Marti Hiken, co-chair of the guild's Military Law Task Force in San Francisco. "Military people won't go in if they can't get out."

Santiago's attorney, Steven Goldberg, a member of the National Lawyers Guild, said his client steered away from politics.

Santiago was traveling yesterday and could not be reached.

"I've not spoken about the politics with him," Goldberg said. "It's really about fairness."

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President George W. Bush's statement in March 2006 after 3 yrs of war "a future President will have to resolve war in Iraq"


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