"Doe" vs. Rumsfeld

By Jeff Horwitz
Published August 18, 2004 4:06PM (EDT)

An anonymous California National Guardsman filed suit in Federal District Court in San Francisco on Tuesday claiming that a "stop loss" order preventing him from leaving the military at the end of his contract is a violation of his civil liberties -- the first legal challenge to the 40,000 stop-loss orders issued by the U.S. military since 9/11.

"John Doe," whose Guard unit is based in Dublin, Calif., has already served nine years in the Army and Marines, and is currently being treated for post-traumatic stress disorder arising from his service in Iraq, which ended in October 2003. He had been under stop loss during his tour in Iraq as well, and received his discharge four months late.

San Francisco civil rights attorney Michael Sorgen told reporters here that John Doe's case is focused on the law, not politics -- but the political ramifications are clearly inescapable. The suit argues that the war in Iraq is unrelated to the war on terrorism, and that because the executive order used to justify Doe's retention allows for the mobilization of Guardsmen only "in order to respond to the continuing and immediate threat of further terrorist attacks on the United States," it should not apply.

Sorgen maintained that this is fundamentally a legal point. "Just look at the 9/11 report," he said. "Iraq has no connection to preventing an attack on the United States."

The suit does not directly challenge the government's authority to involuntarily retain soldiers during a crisis. Instead, it argues that because Congress has declared neither a war nor a national emergency, the executive branch does not have the authority to extend Doe's enlistment. "You can't make slaves out of people who have already done their service," Sorgen added.

But legal precedent may prove a bit of a mine field. In United States vs. Sherman, a Georgia district court found that a stop-loss order issued during the first Persian Gulf war was an "exception," not a violation, to the limitations on involuntary extensions of enlistment.

Still, Sorgen said, "I suspect when word gets out about this case, other people will start filing similar lawsuits."

Jeff Horwitz

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