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9th Circuit Upholds Backdoor Draft

The 9th Circuit Court of Appeals has refused to invalidate the military's "stop loss" policy." As a result, National Guard members who served their eight years will be forced to go back to Iraq.

The courts have generally upheld the so-called "stop loss" law that authorizes President Bush to suspend service agreements of many armed forces personnel for national security reasons. Thousands of soldiers have been redeployed under stop loss orders.

In court briefs, the government told the appeals court Thursday that "soldiers are essential to the national security, and their service in the face of hardship is a crucial source of the strength of our nation."

One of the guards, Emiliano Santiago, says he will appeal to the U.S. Supreme Court. Some background on the case is here, and here.

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  • Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#1)
    by Talkleft Visitor on Thu Apr 07, 2005 at 06:45:15 PM EST
    "their service in the face of hardship is a crucial source of strength in our nation" translates to "We're not going to sacrifice anything here at home, but those suckers who once signed up to be soldiers can continue to pay the price for our tax cuts"

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#2)
    by jimcee on Thu Apr 07, 2005 at 07:04:50 PM EST
    If the 9th Court agrees then there is no hope for the petitioners. After all if any court was to decide in their favor it would be the 9th Court. Note to everyone: When you sign a contract please read the fine print as it is there for a reason just ask any of the "legal eagles" that run this site. It sucks but it is true, be careful of what you sign. If you own a wireless phone you know what I'm talking about.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#3)
    by Talkleft Visitor on Thu Apr 07, 2005 at 07:44:55 PM EST
    Maybe I had an honest recruiter, but I was told up front that every enlistment was and 8 year one, with the military reserving the right to extend your tour if deemed necessary. The same stop loss policy was invoked when we went to Desert Storm- one of our cooks had one day to go and had turned in his equipment when the order came and he was told to "Get in the other Line". The military is well within its rights- everyone signs the same papers.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#4)
    by Johnny on Thu Apr 07, 2005 at 08:29:09 PM EST
    Wow... those uber-liberal activist judges didn't deem it illegal?

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#5)
    by cp on Thu Apr 07, 2005 at 08:58:28 PM EST
    yep, it's always been there. however, since it has received so much adverse publicity this time around, i suspect it will, in turn, have an adverse effect on current and future recruitment. at some point, you can only have so many 65 year-olds in your ranks, and then you need some young blood. can you say "draft", boys and girls? i knew that you could!

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#6)
    by Talkleft Visitor on Thu Apr 07, 2005 at 08:59:59 PM EST
    Gerry, maybe you should read that story again. Santiago already completed his "eight year obligation" which is exactly why he claims (correctly I think) that this is a backdoor draft. Stop loss doesn't care whether you've completed your obligation or not. Stop loss is even used to keep people with more than twenty years service from retiring.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#7)
    by Talkleft Visitor on Thu Apr 07, 2005 at 09:39:54 PM EST
    Romberry- Give me a link onthat if you could- I saw where one guy had signed with the Nat'l Guard after being active, and it is my understanding (but not experience) that they have a similar commitment. USUALLY, a soldier who is going on eight years has reupped at least once, hence a new 8 year clock.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#8)
    by Johnny on Thu Apr 07, 2005 at 11:09:35 PM EST
    Actually, isn't there something about "ready reserve"? Anyone who joins the military should know that it is a lifelong committment. Period. I think recruiters could be a little more forthcoming, but I also think young people should ask questions like "If I get discharged after my 20 years, and our president invades a country, can I still make golf plans or not?" Fair enough.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#9)
    by Talkleft Visitor on Fri Apr 08, 2005 at 01:11:02 AM EST
    Bush is burning up and wasting vast amounts of our best military in the Fool's demonstration, YET AGAIN, of the sound reasoning of the Powell Doctrine. This refusal to allow soldiers to retire and not fight wars of choice for eternity is nothing other than the LACK OF EXIT STRATEGY. Bush has kicked the props out of the Powell Doctrine. And he does that at a time when almost no one in his monied class makes the military sacrifice. Wingers say that the soldiers signed the contract, the country needs them, blah-blah-blah, but in fact it is a SEPARATE sacrifice. If the nation NEEDED this war, it would UTTERLY UNFORGIVEABLE that the monied didn't offer up their own children in its defense. The continuing ENDLESS bloodbath is the daily disloyalty of Bush and his cronies. They use the Powell Doctrine as toilet paper, having run out of Bill of Rights' two-plies. Bush and his Department of Death are raping our soldiers, their children and families, for the profit of their military-oil industry Axis, and their neocon dreams. I and others in the US who truly support our military DEMAND the reinstitution of the Powell Doctrine.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#10)
    by bad Jim on Fri Apr 08, 2005 at 01:44:46 AM EST
    Atrios linked this story and excerpted this quote:
    Making it all the stranger is that the Army presented him with a new contract that extended his service until 2031. Army spokesperson Hart says the date was arbitrary, meant to allow for "wiggle room." Says Santiago, looking at another 27 years in the Army over and above the eight he signed up for: "It's crazy."


    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#11)
    by Talkleft Visitor on Fri Apr 08, 2005 at 04:42:11 AM EST
    Isn't likely the 9th refused to invalidate the case to force the Supremes to hear the case?

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#12)
    by Talkleft Visitor on Fri Apr 08, 2005 at 04:59:54 AM EST
    Having served in Uncle's AF back in the 50s & 60s, I can tell you that while having the government extend your enlistment sucks, it has always been legal. Needs of the service, needs of the country, etc. Even after having served all of my military service requirement on active duty and being beyond the age limit of the draft back then, I (and others) were still at the mercy of "the needs of the service" and "the needs of the country" were a call back ever deemed necessary. I didn't like that then under Ike, JFK & LBJ and I don't like it now under the Lyin' King but it is not something new to the military scene. It has always been thus and the troops trying to use the courts to get out of it, based on a contractual basis, will not prevail because of those "needs of the service" and "needs of the country" clauses.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#13)
    by Talkleft Visitor on Fri Apr 08, 2005 at 07:14:19 AM EST
    The 9th Circuit isn't monolithic. As it happens, two of the three judges on this panel (Tallman and Rawlinson), although Clinton appointees, are definitely conservatives. So it wouldn't be right to point to this case for the proposition that "even the liberal Ninth Circuit rejected the soldier's challenge." Plus, the panel merely denied Santiago's motion for an injunction; it hasn't yet reached the merits.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#14)
    by kdog on Fri Apr 08, 2005 at 08:30:18 AM EST
    Moral of the story...don't sign your life away.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#15)
    by Talkleft Visitor on Fri Apr 08, 2005 at 08:54:12 AM EST
    Now that people are seeing this fine-print in action, I bet that soon that sort of fine print will have to be removed for potential recruits in the future. If they want any recruits for the future. As for me, I served 1988-1996 and am not on the IRR. If they come for me, they better be prepared to return fire.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#16)
    by Talkleft Visitor on Fri Apr 08, 2005 at 09:07:15 AM EST
    Isn't there FINE PRINT in everything that we sign these days?? Young men and women must be getting a little smarter these days, aren't the numbers down for the military recruits? If we could all get out of everything that we ever signed our names to then we would all be better off, but it's just not that way.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#17)
    by Talkleft Visitor on Fri Apr 08, 2005 at 09:40:28 AM EST
    Can't keep 'em forever. Broke service agreements for really, really crappy reasons (not exactly defeating world facism), i.e., screwing up the war pseudo-plan. Beware of long lines of future enlistees for the next American mis-adventure stretching around your block.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#18)
    by Jlvngstn on Fri Apr 08, 2005 at 10:24:44 AM EST
    I believe Gerry is correct, when I signed I thought the recruiter told me it was 6 and when approached about reupping I knew it extended the obligation. Not because they said that in the reupping, but everyone that had reupped talked about it. This is one of those things that was constantly talked about amongst my peers whilst I was in and I find it hard to believe that especially now, it is not discussed regularly.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#19)
    by Talkleft Visitor on Fri Apr 08, 2005 at 10:51:08 AM EST
    Jlvnstn- I think you are right, it was a six year clock unless you signed a six year Active, then it was 8. Too many beers since then (most of them while I was in). I find it hard to believe these soldiers didn't know, but I do understand them being pissed, particularly the ones who had ETS'd and got the letter reactivating them.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#20)
    by Talkleft Visitor on Fri Apr 08, 2005 at 11:37:20 AM EST
    Among the truly disgusting aspects of the stop-loss policy is the Right's rationalization: "Har, har, har, they should have read the fine print." However, since the alternative would be to demand some responsibility from Bush (who clearly values these soldiers' lives no more than he would soldiers in a video game), and since the Right's party line is that Bush can do no wrong, their only alternative is to blame Americans who signed up with the reasonable belief that their C-in-C wouldn't be such a scumbag as to use "fine print" as an unprecedented means to screw them. Bush is the end of the United States as a superpower. He's squandered so national jewels--and one of them is our military. It used to be a good and mostly honorable career. Now, anyone with a brain is going to stay clear of it.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#21)
    by Talkleft Visitor on Fri Apr 08, 2005 at 11:59:19 AM EST
    Molly.... Americans who signed up with the reasonable belief that their C-in-C wouldn't be such a scumbag as to use "fine print" as an unprecedented means to screw them. You obviously didn't read any post before yours... when you sign up... your ass belongs to the military.. period! As was the case for me during Viet Nam, if they decide they need you longer.. they keep you longer. That's why you usually have a reserve committment as long as your active duty was. As K-dog points out, if you have a problem with this, don't sign up. I was drafted and didn't have that choice! BTW... be careful with the fine print on your credit cards, leases, home loans..etc..etc... as we all know GW also controls those...LOL So, if you do end up getting screwed, you can blame him for that too

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#22)
    by Talkleft Visitor on Fri Apr 08, 2005 at 12:05:14 PM EST
    To B.B. So true!

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#23)
    by Talkleft Visitor on Fri Apr 08, 2005 at 12:32:27 PM EST
    I think Molly's got the right idea, but I wouldn't say that the problem with the C-in-C is that he's using "fine print". The problem is with his phony pretense that our troop presence in Iraq is needed for national security purposes. I'm sure that most recruits don't object to the use of stop-loss for legitimate emergencies; and when they signed up, they no doubt assumed that that's how it would be used. I don't see why they should be penalized for not being able to imagine that someone as dishonest and depraved as Bush would come to power and be given carte blanche to do as he pleases.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#24)
    by kdog on Fri Apr 08, 2005 at 01:52:02 PM EST
    The problem is with his phony pretense that our troop presence in Iraq is needed for national security purposes
    Excellent point wm. As you said, in a legitimate war, I doubt we'd hear complaints.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#25)
    by Talkleft Visitor on Fri Apr 08, 2005 at 01:52:15 PM EST
    BB--Read every one. Yours too. It's not a question as to whether the thing is legal. It's a question as to whether it's right--or even a good idea. This isn't my credit card company trying to make a buck by playing with my rates--I know Capitol One and I have an adversarial relationship. This is playing fast and loose with people that you need to be as straight with as you can. If you lose your soldiers' trust, you won't have much of a military--and that's what's happening under Bush. You can bet that the when you sign up... your ass belongs to the military.. period! bit is NOT made clear to new recruits. In the interests of finding out precisely what the "fine print" consists of, I went over half-a-dozen recruiting websites without finding a word about it. In fact, the Army Reserve site claims "Once activated, Army Reserve Soldiers can only serve a maximum of two years Active Duty." (Fifth 'graf down; emphasis added.) Though, in fairness to the recruiters, why should they emphasize something that hasn't happened under more honorable presidents? Except for some fiddling at the end of WWII, has there been another president in living memory who screwed with troops' expected exit dates in such a wholesale manner?

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#26)
    by Talkleft Visitor on Fri Apr 08, 2005 at 02:35:55 PM EST
    "Posted by lawye: "The 9th Circuit isn't monolithic. As it happens, two of the three judges on this panel..." A bit ambiguous, the meaning of 'this.' This is just this three-judge panel. En banc is a lot bigger than that, and more 'conservative,' strengthening your point. The 9th Circuit en banc approved the 03 CA Recall vote fraud episode, even though the testimony was that massive voter disenfranchizement would occur, as it did. This after the three-judge panel threw it out as unconstitutional. Molly, forget "more honorable" presidents... LEGALLY ELECTED would get you there faster. No Exit Strategy. NO learning from Vietnam, except 'bedding journalists to control the spin, and a better incendiary weapon for murdering the civilians.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#27)
    by john horse on Fri Apr 08, 2005 at 02:41:37 PM EST
    I can't agree with Molly more. The issue here isn't whether this loophole is legal or whether it has been used occasionally in the past, but one of basic fairness. The use of this backdoor draft on a widespread basis is unprecedented. This is not what many of our servicemen believed that they were signing up for. According to David Hackworth, there are reports that there is a growing erosion of morale among our troops in Iraq. The backdoor draft is such a cruel reward for the sacrifice of those who serve our country. They deserve better.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#28)
    by Che's Lounge on Fri Apr 08, 2005 at 02:48:27 PM EST
    Wm beat me to it. The ruling is moot, as this entire war is illegal. Are these the judges that Delay wants impeached?

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#29)
    by Talkleft Visitor on Fri Apr 08, 2005 at 02:49:51 PM EST
    The best thing to do is to stay as FAR away from the military as possible. Do not sell yourself into slavery by signing on that dotted line. The war in Iraq has NOTHING to do with National Security. Perhaps those Reservists can claim they are gay or in some way cause themselves to appear unfit.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#30)
    by john horse on Fri Apr 08, 2005 at 03:24:49 PM EST
    Che, This ruling is not "moot" to our servicemen. This backdoor draft is necessary because there are so few people signing up for the war. As a result, the military has been reduced to treating people for Post Tramautic Stress disorder, then sending them back to combat. According Army stats, the number of combat soldiers who admit to post combat mental problems has gone from the normal 4 to 5% to an astounding 17%. Whether you support the war or don't, don't you think that our troops deserve to be treated better?

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#31)
    by Talkleft Visitor on Fri Apr 08, 2005 at 08:32:32 PM EST
    Molly -
    You can bet that the when you sign up... your ass belongs to the military.. period! bit is NOT made clear to new recruits
    Sorry. I've been in the military, and known dozens of people in the military. It was, in fact, thoroughly explained. The thing to focus on here is what others have brought up higher in the thread - there's no particular reason for us to be in Iraq in the first place! Sean

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#32)
    by Che's Lounge on Fri Apr 08, 2005 at 09:26:09 PM EST
    John Horse, Any troops suffering from any injuries, physical or psychological, should receive the best care we have to offer. Their treatment is not a political issue. But Boeing gets the bucks, and the vets suffer. However, soldiers should now be fully aware that this war is predicated on falsehoods. JMHO, but their duty to the country should be to no longer participate in this crime. To continue carrying out aggression against the Iraqi people constitutes their acceptance and participation in these crimes. Soldiers are not slaves. They are not machines. They can think.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#33)
    by Talkleft Visitor on Fri Apr 08, 2005 at 10:48:28 PM EST
    "their duty to the country should be to no longer participate in this crime." Duty to the squad preempts that more abstract duty, CL. "To continue carrying out aggression against the Iraqi people constitutes their acceptance and participation in these crimes." No, it doesn't. Soldiers are not free to exempt themselves from orders, even with the Nuremberg precedent. The real guilt is at the top of the chain of command, and not at the bottom. Courts martial will still handle the egregious violations at the bottom, if they are used. Soldiers are still under oath. The real problem is the MERCS, who have no oath, no code. And the brass -- who are traitors to their oath, to our values, and to the Constitution. I blame the military; I do not blame the soldiers, unless they specifically violate their code of conduct. I do think that any soldiers that do refuse should be fully supported by all of us, given the facts. There is no cowardice or dishonor in refusing to participate in an illegal invasion/genocide.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#34)
    by Che's Lounge on Sat Apr 09, 2005 at 12:17:36 PM EST
    PIL, Entire squads have done it. Prepare for more fragging.

    Re: 9th Circuit Upholds Backdoor Draft (none / 0) (#35)
    by Talkleft Visitor on Mon Apr 11, 2005 at 04:50:14 AM EST
    Just want to straighten out a few things. The Army consists of 3 areas, active enlistments, active reserves, and ready reserves. When you sign up for the military, regardless of how long you are signing up for active duty, you sign on for 8 years of ready reserve. So if you perform 4 years, and then leave, the military reserves the right to call you back for the next 4. The exception to this rule is if you are a comissioned officer, in which case the military can call you back indefinitely. As for the Active Reserves, the law (and most likely their contracts) state they can not be deployed to active duty for longer than 24 months. Congress, the pentagon, and the white house are currently considering changing this. What this case was/is about is Bush's use of the stop-loss order. Stop loss is not the call up of the ready reserve. It's the ability of the pentagon to refuse to allow soldiers to leave the military at the end of their commitment. In this case, soldiers are not being allowed to leave if they are deployed to Iraq/Afghanistan, have returned within 6 months, or are set to be deployed within 6 months. That about covers everyone in the Army. The rules on using stop loss are very clear. Congress has the right to issue a stop loss order in the time of a declaration of war or a declaration of a national emergency. The US has neither at this point. Nor was stop-loss used in Vietnam. A draft was used in Vietnam, but soldiers knew they were 1 done (out in 1 year). Now, Bush has passed a law allowing stop-loss to be used to prevent terrorist attacks on the US. Many of our soldiers were soldiers before this bill was passed (late 2001 or 2002). As for the clip above, the case is arguing that that deployments to Iraq (and maybe now Afghanistan, see below) are not related to the war on terrorism and therefor are invalid. Originally, the case was brought on behalf of a different soldier deploying to Iraq. This soldier later dropped the lawsuit after he was released for medical reasons. The law office then continued on with a new soldier, although I'm unsure if he's deploying to Iraq or Afghanistan. However, I believe both had already served one tour in theater. Our soldiers are making supreme sacrifices for us, to dismiss them by saying "they should have read the fine print" is a great disservice.