Stop Loss: Debate the Issue Now

OPINION
The National Law Journal
January 31, 2005

n Dec. 6, 2004, Army Specialist David W. Qualls, together with eight 'John Doe' co-plaintiffs, sued Secretary of Defense Donald Rumsfeld in the District of Columbia, attacking the legality of the 'Stop Loss' program and requesting preliminary injunctive relief releasing them from military service. Stop Loss has been used to extend enlistment contracts involuntarily. Qualls, who first enlisted in 1986, spent four years on active duty, then joined the Reserves, where he served until 1994. In July 2003, he again enlisted, this time entering the Army National Guard pursuant to the 'Try One' plan, which permits veterans to sign up for a year before having to commit themselves to a full enlistment. Stationed since March 2004 in Taji, Iraq, an especially dangerous area 15 miles north of Baghdad, Qualls has been held against his will pursuant to the Stop Loss policy since July 2004.

While prospects of victory in court seem dim — Qualls has already been denied a temporary restraining order to prevent his having to return to Iraq from a brief leave in the United States-his lawsuit reflects worsening morale among the troops. Moreover, if the conflict continues indefinitely or spreads to other distant theaters, it raises the specter of a possible return to the draft. In that event, 'Hell no, we won't go!' might again become a rallying cry rather than an echo from Vietnam days.

Qualls and his lawyers from the Center for Constitutional Rights (CCR) primarily claim that the defendants breached his contract and induced him to sign it fraudulently by representing that his service would be limited to one year and by failing to mention that the term could be lengthened. (Qualls and the government disagree about whether this contract contained a standard addendum that discusses some of the relevant statutes and would, says the government, have put him on notice about his exposure.) According to one of Qualls' attorneys, the Army subjected Qualls and others 'to a classic bait and switch operation.'

The U.S. Department of Justice's defense appears to rest on solid legal grounds. Section 12305(a) of Title 10 reads: 'Notwithstanding any other provision of law, during any period members of a reserve component are serving on active duty...the President may suspend any provision of law relating to... separation applicable to any member of the armed forces who the President determines is essential to the security of the United States.'

Further, relying on the U.S. Supreme Court's assertion in Bell v. United States (1961) that enlistment is no ordinary contract since it effects a change of status from citizen to soldier, and on traditional judicial deference to the military, the government argues that Qualls' contract does not circumscribe the president's authority in this regard. The plaintiffs' contention that a contract is not a 'provision of law' under § 12305(a) is unconvincing. Moreover, as the government also urges: ' 'Any member of the armed forces' cannot be reasonably read to include only those members that do not hold an enlistment contract, as that would preclude extending on active duty any enlisted soldiers,' a reading that would undermine the statute's purpose.

Indeed, CCR Legal Director Jeffrey Fogel has admitted that Qualls' chances of prevailing are poor. A federal judge in California declined to enjoin the Stop Loss policy in November 2004 in Doe v. Rumsfeld, as did one in Georgia during the Gulf War in 1991 in Sherman v. United States. This concession suggests that the lawsuit aims more at consciousness-raising and public education than at winning. On this dimension, CCR may ultimately turn defeat into victory.

Legally valid, but unfair

While presumably legally valid, Stop Loss may strike many, especially those who doubt the wisdom of the war in Iraq, as unethical and unfair; the military is the archetypal 800-pound gorilla.

Undertaken because of need — in October and November 2004, Army National Guard recruiting fell 30% short of its goal — the program threatens to expand as Iraq consumes more of our nation's physical and human resources. Widespread Stop Loss contradicts the whole idea of a volunteer military. Thus, the chief of the Army Reserve, Lieutenant General James R. Helmly, has said that such declines could lead to renewed debate over the draft.

Virtually all, including leaders of the armed forces, oppose returning to conscription. Yet, as people are starting to notice, Stop Loss orders operate as a 'backdoor draft.' Since these plainly threaten to broaden into a draft in all but name, perhaps the debate we should be having is about Stop Loss-and now, not later. In this discussion, Qualls v. Rumsfeld has fired one of the opening salvos.