Supporting our troops, one conscript at a time

I know that it's important that the US military have the resources it needs so that it can do the things that it needs do.  But this nonsense about the stop-loss policy is crossing a line:

A federal judge on Monday dismissed a lawsuit challenging the Army's right to force soldiers to serve past the dates of their enlistments, the so-called "stop loss" policy that can keep men and women in uniform during war or national emergencies.

Spc. David Qualls had sought a preliminary injunction to prevent the Army from forcing him to remain on active duty, claiming his enlistment contract was misleading. He signed up for a one-year stint in the Arkansas National Guard in July 2003 but was later told he would remain on active duty in Iraq until 2005.[...]

The government maintained that the enlistment contract provided that soldiers may be involuntarily ordered to active duty in case of war, national emergency or any other condition required by law, which the government contended would include extensions of existing contracts.

via Salon.  [Apparently, the Washington Post notes in a correction, the judge didn't dismiss the lawsuit, but refused to grant the preliminary injunction Qualls had requested; though the judge notes that Qualls doesn't have much of a chance on the merits.]

Now, I took a look at the enlistment contract.  It is here (PDF).  The relevant portion appears to be

As a member of a Reserve Component, in time of war or national emergency declared by the Congress, I may be required to serve on active duty (other than for training) for the entire period of the war or emergency and for six (6) months after its end.

Which, legally speaking, appears to be pretty unambiguous.  The judge's ruling seems to be correct as a matter of law.  But that doesn't mean that it's correct as a matter of ethics, or that the above phrase is the whole story. 

I say this because if Qualls signed the enlistment contract without knowing what that meant, which he seems to have done, there's a problem.  Reading the judge's opinion (also PDF) in this case, you find out that Qualls claims that the Army mislead him:

Qualls also alleges that the Army falsely represents its Try One progr year trial program after which a recruit can decide to reenlist or leave when in fact, Try One enlistees can have their terms of service involuntary extended. As evidence of the representations that the Army makes, Qualls has submitted Army recruiting materials from the Army National Guard’s Internet website. One webpage states that Try One "allows a veteran to serve for only one year on a trial basis before committing to a full enlistment;" another webpage describes the Try One program under the heading of "Trial Programs."

It seems clear that Qualls was making his decision to enlist based on some sort of program that lead him to believe one thing, when another was the case.  The judge wriggles out of it in an unsettling manner:

Qualls, however, has offered no evidence of his own reliance on the Army’s representations, or, for that matter, his own reliance on the Army’s alleged omissions. The webpage printouts that Qualls submitted with his motion for preliminary injunction were printed on November 22, 2004, which is months after Qualls signed up for Try One. Qualls never affirms that he viewed let alone relied on similar recruitment material or representations from Army recruitment personnel. Qualls offers no evidence that " false or fraudulent inducements, representations, promises, or guarantees . . . prompted or caused [him] to sign his contract of enlistment." Chalfant, 420 F.2d at 945 (quoting the district court’s findings). As discussed above, Qualls must produce the credible evidence essential to making a clear showing of that he is likely to succeed on his claim. Again, Qualls has not done so.

Which is to say, even if the Army is engaged in misleading recruits, the recruit has to prove that the misleading materials are things he relied on when making his decision.  How would one go about doing that?  I don't know either.

Now, I can imagine a situation in which a (possibly not well-educated) recruit signs up for a 1 year trial program that the Army has that he sees on a website.  Maybe it pays well.  Maybe it is presented like there are no strings attached.  Maybe the recruiter says that he just needs a signature on this paper here.  Thanks, you'll be hearing from us in a few days.

Maybe, as the Center for Constitutional Rights (which tried the case) contends, Qualls in fact

never saw the portion of his contract that stipulated his tour with the U.S. Army could be extended. The copy that the Arkansas National Guard has on file does not contain the page in question, and the Government has been unable to produce a copy that includes the page.

How would you prove that?

It's hard to say what's really going on in this case, given that the media reports tend to be undetailed, and the legal stuff tends to be, well, legal stuff.  And this weird twist:

The soldier, Specialist David W. Qualls, an Arkansas National Guardsman who was the only named plaintiff in a federal lawsuit challenging the Army's so-called stop-loss policy, said that his family's deep financial problems led him to give up his court fight and to re-enlist last Tuesday. In an interview through e-mail messages to his post in Iraq, Specialist Qualls said that he had received a $15,000 bonus for signing up again.

"I realized that the lawsuit was not going to produce any results," Specialist Qualls wrote on Friday night. "I had to do what I thought would be best for my family."

But if this is all as it appears, i.e., the military deceived a recruit and kept him longer than he understood he would be kept and he challenged it but upon realizing that he was going to lose decided that he had no choice but to re-enlist because his family needed the money, well, that's pretty fucked up.  And if the military in general really is having a hard time meeting its recruiting goals and so are resorting to some sort of deception because people don't want to fight a war because George W. Bush can't admit a mistake, well, that's more fucked up. But there might be more going on here that we don't know about.

What surely is uncalled for, though, is the Washington Times' disgusting editorial about it:

The court weighed the interests of the servicemen and the interests of the public. In one particularly moving passage, it said that Spc. Qualls, "like other military personnel in Iraq, puts his life on the line every day and faces a great risk of harm and death as a result of his continuing service."

What the judge actually says is

Mr. Qualls is currently serving on active duty in Iraq. He, like other military personnel in Iraq, puts his life on the line every day and faces a great risk of harm and death as a result of his continuing service. Qualls would be forced to remain in harms way and would be irreparably injured should an injunction not issue. This is irreparable harm. See Parrish v. Brownlee, 335 F. Supp. 2d 661, 668 (E.D.N.C. 2004) ("[A]ssuming for purposes of the irreparable harm analysis that plaintiff's arguments are meritorious and that the call to active duty is unjustified, a loss of liberty and companionship of family in such circumstances is significant and irreparable.  Accordingly, if the injunction is improperly denied, there is a strong probability of irreparable harm to plaintiff pending trial and final judgment.").

The Army argues that Quall’s delay in seeking relief – from October of 2003 when he learned of his extension until December of 2004 when he filed suit – militates against a finding of irreparable harm. Such a delay may count against a plaintiff in the court’s harm analysis.

It's not "moving" as the Washington Times says.  The judge isn't saying that to honor the troops.  He's in the middle of giving a reason why he's not granting the temporary injunction.  The editors at the Washington Times should really try reading things before they print them.  Or maybe, if they do read them, they should try not distorting them.  I'm not holding my breath.

But they finish their editorial in a way to make us all feel better:

Military life is unpredictable, and more so during times of war. The stop-loss policy is yet another reminder of that fact.

Tsunamis, car accidents, and spontaneous combustion are unpredictable too, fuckwits.  But now that I know that military life is unpredictable during times of war, I'll make sure to switch my party registration.

-- Michael

Comments

[Cheryl]

in time of war or national emergency declared by the Congress

To the best of my memory, the Congress merely gave George W. Bush the authority to invade Iraq based on a presidential finding that Iraq possessed weapons of mass destruction in violation of the UN resolution. There is no war or national emergency. Congess never declared war and the invasion was completed in a few days.

The remaining activity is an occupation subsequent to invasion, not a war. Congress has not declared it a war, and hostilities are over. The government of Iraq is a provisional puppet.

There is no war and no national emergency. The whole clause does not apply.

George Bush may have declared a 'War on Terror' in the media, but this so-called 'war' has no declaration associated with it. As the Republicans are so fond of pointing out, since 9/11 there has been no attack on US soil.

The whole argument is disingenuous from the start.

[PW]

Good. Thanks Cheryl! I came in to ask whether I'd remembered correctly that Congress did not act as it would be required to under law for the contract to hold. I'm no lawyer, but it seems as clear as day to me.

I'd like to see this can of worms fully opened by a top-notch lawyer.

[DavidByron]

Same here. I don't recall congress doing anything - declaring any war or any state or emergency or whatever. Just Bush. In fact I assumed this was entirely purposeful on their part.