SAN FRANCISCO - A California Army National Guard soldier challenged the military's so-called "stop-loss" program in federal court here, claiming Tuesday the Pentagon's plans to keep as many as 20,000 U.S. Army personnel beyond their time of service is illegal.
It was the first lawsuit challenging extended military service following the Sept. 11, 2001, terror attacks.
The soldier's complaint comes as the Army is struggling to find fresh units to continue the occupation of Iraq. Almost every combat unit has faced or will face duty there or in Afghanistan, and increased violence has forced the deployment of an additional 20,000 troops to the Iraq region, straining units even further.
The move allows the Army to keep units together as they deploy. Units with new recruits or recently transferred soldiers would not perform as well because the troops would not have had time to work together, the military said.
The soldier who is suing the military has more than a decade of service with the U.S. Marine Corps, including combat in Iraq and Somalia. Last year, after returning from Iraq, he left the Marines and made a one-year commitment to the California Army National Guard.
But he recently was notified that it was extended by as much as two years, and that he could soon be heading to Iraq for another tour of combat - all of which is against his wishes.
The soldier's attorney likened the Pentagon's move, as did Democratic presidential candidate John Kerry, as a "backdoor draft." The guardsman's attorneys did not include the decorated serviceman's name, age or hometown on the lawsuit to protect his family's privacy.
"It's not that John Doe is a coward by any means," said the sergeant's San Francisco attorney, Michael Sorgen. He said his client, who was also ordered to stay in Iraq last year beyond his enlisted commitment, suffers from post traumatic stress disorder, and his deployment has been put on hold.
Sorgen said the soldier's enlistment contract does "not authorize Doe's involuntary retention in military service under the present circumstances." He said he could be involuntary retained in the military during a time of war or national emergency, but "Congress has not declared war or a national emergency," Sorgen said.
Lt. Pamela Hart, an Army spokeswoman, said as many as 20,000 soldiers are affected, which she said was necessary for a cohesive military with seasoned personnel.
"When soldiers consider serving next to one that they've known, they know the person's strengths," Hart said, adding that it was "understandable" that some soldiers might balk at the extension of their duty. "It's much safer and comforting to know you are serving a war with someone you can count on."
She said the plan is "authorized by a statute, and allows the military services, the Army in this case, to retain those experienced, trained and skilled manpower personnel."
It is the second such challenge to the military's stop-loss program. A Georgia soldier lost a lawsuit against the Pentagon in a Georgia federal court during the first Gulf War.
Marguerite Hiken, chairwoman of the National Lawyer's Guild Military Law Task force, said the group has received "thousands" of calls from soldiers who say the recall is disrupting their civilian lives and businesses. She said the callers ask "Why doesn't the Army live up to its contract?"
The legal issue surrounds a Sept. 14, 2001, order President Bush issued days after the terror attacks, which authorized Defense Secretary Donald Rumsfeld to ready the armed forces "to respond to the continuing and immediate threat of further terrorist attacks on the United States."
Sorgen said Iraq now cannot be "considered to pose a threat of terrorist attacks upon the United States." He said Iraq, "if it ever did" pose such a threat, now has in interim government "put in place with U.S. assistance, and Iraq is again considered a 'sovereign' nation."
The lawsuit notes the Sept. 11 commission's report said there was no "collaborative operational relationship" between terrorists and Iraq plotting attacks against the United States.
No court date has been set.
The case is Doe v. Rumsfeld, 04-3361.
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Editors: David Kravets has been covering state and federal courts for more than a decade.