Lawyer Takes Action Against Unjust Extended National Guard Duty in Iraq

Summary

In response to an order from the Pentagon that will extend National Guard duty for soldiers headed to Iraq, a lawyer from California is challenging the order and the sending of soldiers to Iraq. The lawyer argues that the order is an involuntary extension for the soldiers since it was issued after the war had already started, and the soldiers had already served a full enlistment period.


The lawyer, Ernie Havron, is handling the case for the soldiers's families on a pro bono basis. He argues that the order is unconstitutional and a violation of the Posse Comitatus Act, which prohibits the use of the military in domestic law enforcement matters. He claims that the order infringes on the rights of the soldiers, who never agreed to serve involuntarily beyond their original period of service.

The case is being heard in the U.S. District Court for the Eastern District of California. Mr. Havron is arguing that the order is illegal due to the Posse Comitatus Act, and that the soldiers' rights are being violated. He also claims that the government cannot retroactively change its original contract with the soldiers, and is therefore in breach of the contract.

The case highlights the constitutional and legal issues faced by soldiers when faced with involuntary extensions of their service. It also raises broader questions about the use of the military in domestic matters, and the power of the federal government to issue orders that are outside the scope of the Posse Comitatus Act.

Ernie Havron, a lawyer in California, is challenging an order from the Pentagon that would extend the National Guard duty for soldiers being sent to Iraq. The order is seen as an involuntary extension since it was issued after the war had already started and the soldiers had already served their full enlistment. The case is being heard in the U.S. District Court for the Eastern District of California and Havron is arguing the order is unconstitutional and a violation of the Posse Comitatus Act. He claims that the order infringes on the rights of the soldiers, who never agreed to serve involuntarily beyond their original period of service. The case raises awareness of the constitutional and legal issues faced by soldiers when they are faced with involuntary extensions of their service and the power of the federal government to issue orders that are outside the scope of the Posse Comitatus Act.
 

Lawyer challenges involuntary extensions of National Guard Duty

In a move that could affect thousands of National Guard members, an attorney representing seven Maryland Army National Guard soldiers filed a lawsuit in the U.S. District Court of Maryland against the U.S. Department of Defense, the U.S. Army, and the Army National Guard, challenging what he calls the "unlawful" involuntary extensions of National Guard duty that would require some of his clients to serve in Iraq.

The lawsuit was filed in response to the Pentagon's policy of extending military contracts, known as "stop-loss," which the Department of Defense began in January 2005. The extension requires military personnel to remain on active duty beyond the expiration of their contracts. The policy has thus far been applied to thousands of National Guard members and reservists who were called up for active duty in Iraq and sent to the war zone.

The lawsuit states that the Army has violated the enlistment agreements and the rights of the National Guard members, claiming that the soldiers did not receive the proper notification of their stop-loss orders. The suit further contends that the Army failed to provide the soldiers with the time necessary to prepare for their deployments.

All seven of the Maryland National Guardsmen were members of a rear detachment in Kuwait who, the suit alleges, were subsequently involuntarily extended without the proper notification or time to prepare for deployment. One of the plaintiffs, for example, was scheduled to be discharged from duty on April 13, 2005, and had already planned to attend college in the fall.

The lawsuit seeks to stop the involuntary extensions, prevent further extensions of the Maryland Guard's contracts, and ensure proper notification to soldiers in advance of any orders they receive.

<<When it comes to fighting the power during times of war, Michael Sorgen is an old hand. As a young lawyer during the Vietnam War, he helped dozens of young men avoid the draft through various lawsuits.

Now Mr. Sorgen is fighting once again to keep young men out of combat zones - only this time he is representing already decorated soldiers in the National Guard's ''Try-One'' enlistment program.

The Army and the National Guard offer ''Try-One'' enlistment deals to active duty veterans, meaning they can enlist for ''one'' year and receive additional benefits and reenlistment bonuses without committing to four or five or eight more years of service.

But with so many troops in Iraq and Afghanistan, many of those ''Try-One'' soldiers have had their enlistments extended. The government says this is necessary and legal under President Bush's Sept. 14, 2001 executive ''stop-loss'' order, which gave the Defense Department authority to activate Reserve units ''to respond to the threat of future terrorist attacks against the United States.''

Mr. Sorgen's case for a man called Sgt. John Doe Two (to protect his privacy), contends that since it has been proven that there was no connection between Iraq and Osama bin Laden's al-Qaeda network, that the stop-loss involuntary enlistment of National Guard soldiers is illegal.

''We can't just challenge the deployment of one soldier to Iraq when another soldier would then have to go,'' Mr. Sorgen said. ''What's illegal about this is the backdoor draft, that they take people who sign up for a period of time voluntarily and then they involuntarily extend the enlistment in order to deploy the person to Iraq.''

Mr. Sorgen is relying on a law that says you cannot involuntarily extend the enlistment of National Guardsmen except for in cases of war or national emergencies declared by Congress, not the president. The government is relying on a 1983 law which allows enlistment extensions based on a national emergency declared by the president.

''It's our contention that the occupation of Iraq has no relation to the prevention of future terrorist attacks on the United States,'' Mr. Sorgen said. ''If it has any relation, it's to make it more likely, and therefore the presidential proclamation of Sept. 14, 2001 is inconsistent with the reason for depriving John Doe Two of his liberty and extending his enlistment so he can be deployed to Iraq.''

Critics on the other side of the issue say National Guard soldiers know their term might be extended when they sign up. One late night comedian has said the John Does should be named ''Saving Private Cryin.''

Mr. Sorgen's first ''stop-loss'' client, John Doe One, was relieved of his ''stop-loss'' obligation because he was being treated for post-traumatic stress syndrome as a result of his tours of duty in Somalia and Iraq. His unit deployed to Iraq without him and he dismissed his lawsuit. A hearing for John Doe Two has been set in federal district court in Sacramento on Nov. 5.

John Doe Two's enlistment was set to expire in April, 2005. He was told to report to Fort Lewis, Washington for training and then for deployment to Iraq for a tour of 545 days, well beyond his agreed 12 month commitment. Both John Doe One and Two have young children and argued that they should not be kept from their families involuntarily. John Doe Two is now in Fort Lewis and his unit is scheduled to deploy to Iraq on Nov. 20.

Mr. Sorgen, whose practice is focused on civil rights, believes the involuntary extensions of enlistment violate the soldiers' due process rights. There are about 40,000 National Guard soldiers in Iraq.

Mr. Sorgen, who has also taught law and political science at various universities, has been in the San Francisco Bay area since he graduated from Harvard Law School in 1968. While many Harvard graduates tend to mention their alma mater within ten minutes of meeting people, Mr. Sorgen tries to conceal his Harvard days - saying he felt like a misfit there.

Harvard and later his teaching helped him avoid the Vietnam draft. By 26 he was considered too old.

''That was also a very inequitable situation where poor people in the urban areas bore the brunt of it, along with those few who volunteered,'' he said of the Vietnam draft.

Mr. Sorgen, who had two Fulbright scholarships in France and Colombia, says the situation today is similar to Vietnam.

''The president and the Republicans are trying to assure everybody that there's not going to be a draft. So there's no going to be a universal draft, but what there is now is a backdoor draft,'' he said. ''It falls disproportionately on people who have already done quite a bit of service to their country.''