Santiago V. Rumsfeld

Santiago v. Rumsfeld

April 13, 2005

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The defendant triumphs.

They lined up down the stairs and out the doors, waiting patiently for the featured act. But it wasn't a rock band the University of Washington's law students came to see. It was rock stars of the legal world—a three-judge panel of the Federal 9th Circuit Court of Appeals from San Francisco—and they came to Seattle last Wednesday, April 6.

The "tour" is part of a program wherein 9th Circuit judges visit various West Coast law schools once a year to hear local cases and take questions afterward from eager students. Usually, the cases are fairly pedestrian. Not last week.

The attention was due to Emiliano Santiago v. Secretary of Defense Donald Rumsfeld, the highest court test to date of the Pentagon's controversial stop-loss program, aka the "backdoor draft." (See "Stopping Stop-Loss," March 30.) Under stop-loss, some 50,000 soldiers nationwide have been kept active involuntarily beyond the discharge date of their original contracts.

Santiago is a 26-year-old Oregon National Guardsman who works in Richland, Wash. He signed up as an 18-year-old high-school junior and was scheduled to be finished with his eight-year commitment last June, but two weeks before that date, his unit was notified of "possible mobilization." Santiago was told at that time that he couldn't be discharged—in fact, he was presented with a new contract with a discharge date of 2031, a potential lifetime of involuntary servitude. In October, his unit received notification of mobilization and began training for a mission to Afghanistan. To add further drama to last week's court hearing, Santiago's lawyers also wanted an emergency injunction because, barring court action, he was scheduled to ship out to Afghanistan in two days.

The Army allowed Santiago to fly up from Oklahoma, where his unit was training, to attend the hearing. He had already lost in lower courts, and his lawyers had tried and discarded a previous argument challenging the validity of the presidential declaration of a national emergency (which is the legal basis for stop-loss) as being moot now that Afghanistan has a democratic government. (Courts weren't about to entertain the question of whether Afghanistan's government was or wasn't truly democratic.) This time, Santiago's lead attorney, Steven Goldberg, tried to argue contract law—that without the backing of Congress, President Bush (with Rumsfeld acting as his agent) did not have the authority to unilaterally abrogate the terms of a contract with a soldier when a soldier is not already on active duty.

It was a long shot, reflected immediately in the aggressive oral questioning of Goldberg by presiding U.S. Circuit Judge Richard Tallman. Santiago, according to Tallman, was essentially asking the court to second-guess the commander in chief as to what constitutes a national emergency—something Tallman was clearly unwilling to do.

It was all over with remarkable speed: a mere 20 minutes for oral argument, and, within hours, the panel rendered a decision. Santiago not only failed to get an injunction to postpone his deployment, he lost his entire appeal—a process that usually takes weeks or months for a court to decide. Moreover, the full 9th Circuit in San Francisco declined to review the three-judge panel's decision the following day. By Friday, April 8, Santiago was on his way to Afghanistan.

This exercise underscores how precarious the hope is, carried by many progressives, that the federal courts can be the last line of defense against a conservative White House and Congress. The appeals panel was there to decide a matter of law—not of politics or, for that matter, of common sense. At one point, Goldberg made the common-sense observation that giving the federal government unlimited power to extend tours of duty would make it that much harder to recruit volunteer soldiers, and Tallman responded, correctly, that that was the president's problem, not the court's. Courts are not, at least in theory, in the business of deciding political and legislative matters. It might be a matter of crass opportunism that Bush continues to renew declarations of a national "emergency" in the United States due to events in Afghanistan and Iraq, but it's his call to make. And Congress is not about to make it more difficult for him.

In the classroom-turned-courtroom at the UW School of Law, all was proper decorum. But next door, in the overflow room, it was a grand old show, with students boisterously cheering and jeering the various verbal ripostes like some kind of reality-TV taping. It was real to tens of thousands of soldiers kept, many unwillingly, past the time they thought they'd agreed to serve. Some won't survive that extra duty time.

It might not be fair. But, for now, it's the law.

John C. Bonifaz, a Boston attorney has filed a tort and breach of contract case to hold the government accountable for the death of a soldier in Iraq due to the military's Stop-Loss policy.

Bonifaz previously served as plaintiffs’ lead counsel in John Doe v President Bush (2000) a constitutional challenge to President Bush’s authority to wage war against Iraq absent a congressional declaration of war or equivalent action. Bonifaz represented a coalition of US soldiers, parents of US soldiers, and members of Congress, arguing that the President’s first-strike invasion of Iraq violated the War Powers Clause of the US Constitution. That case was dismissed in 2003, the court giving the opinion:

An case might arise if Congress had given absolute discretion to the President to start a war at his or her will... but this does not involve a situation where the President has acted without any apparent congressional authorization, or against congressional opposition... To the contrary, Congress has been deeply involved in significant debate, activity, and authorization connected to our relations with Iraq for over a decade, under three different presidents of both major political parties, and during periods when each party has controlled Congress.

In his current case, Bonifaz is not making any claims on the war itself, nor is he claiming damages from the death of the soldier in question. He is in fact operating under the Federal Tort Claims Act of 1946.

Legally, torts are civil wrongs as opposed to criminal wrongs. Tort laws have been enacted to provide relief for damages incurred by one individual from the actions of another individual and to deter others from committing the same harmful act. Under most tort laws, a person can sue for an injunction to stop the behavior or for compensatory and punitive monetary damages.

However, Sovereign Immunity is a legal concept reflecting the concept that “the King can do no wrong”. This legal doctrine exempts the government from tort lawsuits in order to protect necessary government actions from interference by frivolous and expensive claims. Citizens could not sue the Federal or State governments unless permission was given by the government itself. Obviously this led to unfairness and inequity for persons who were actually harmed or injured by agents of government.

The Federal Tort Claims Act was a Congressional effort to reduce the adverse impact of Sovereign Immunity. In the act, the Federal government gave its consent to be sued in civil tort actions in federal court.

However, in Feres v. U.S. (1950), the Supreme Court concluded that a soldier injured while on active duty in the military could not sue the government under the FTCA. Given these and other precedents and little or no reaction to the Court's statutory interpretations by the Congress, the FTCA has not been a major benefit to persons injured or killed because of negligent actions of federal employees.

The Army has invoked a "stop-loss/stop-movement" program several times since 2003; the program prevents covered soldiers from voluntarily retiring or leaving active duty in order to enhance unit cohesion. Such actions have become more common as the United States has needed to maintain a large presence in Iraq.

Secretary of Defense Donald Rumsfeld was asked by a soldier at a December 8, 2004 town hall how long the program would be used. "It is something that you prefer not to have to use, obviously, in a perfect world," he said (transcript on-line here). "But if you think about it, the whole principle of stop loss is based on unit cohesion. And the principle is that in the event that there is something that requires a unit to be involved and people are in a personal situation where their time was ending, they put a stop loss on it, so that the cohesion can be maintained. It's basically a sound principle. It's nothing new. It's been well understood. It's been used as little as possible. And my guess is that it will continue to be used as little as possible, but that it will continue to be used."

The number of U.S. military personnel in Iraq has changed over time, with the most during the "major combat operations" phase in early 2003. As of June 2005, the United States had about 169,200 active-duty military personnel in Iraq, including 113,600 Army personnel, according to Defense Department statistics (on-line here). The Defense Department had increased troops in late 2004 and early 2005 in preparation for the January 2005 elections for the Transitional National Assembly, and reduced the number afterwards.

As of late October 2000, more than 2,000 U.S. military personnel have died in Iraq, with more than 1,500 deaths resulting from hostile action. The worst months for U.S. fatalities resulting from hostile action were April 2004 and November 2004, when 126 and 125 fatalities resulting from hostile action were reported. More than 1,200 military personnel were wounded in action in each of those months. The following graph tracks the number of U.S. military fatalities and casualties in Iraq since the beginning of the war in March 2003 through mid-October 2005.

President George W. Bush has said several times that troop withdrawals would occur once Iraqi forces were prepared to defend themselves. "As Iraqis stand up, we will stand down. And when the Iraqi forces can defend their freedom by taking more and more of the fight to the enemy, our troops will come home with the honor they have earned," he said in an August 24 speech (on-line here).

Some, like Alan and the judge, have referred to the Bush administration ignoring military advice about the number of troops needed for Iraq. This may be a reference to General Eric Shinseki, who told Congress in February 2003 that several hundred thousand soldiers would be needed to govern Iraq after a war, a figure discounted by administration officials at that time. The Defense Department reported in July 2003 (on-line here) that the United States had about 148,000 service members in Iraq at that time.

Besides Shinseki, former Ambassador Paul Bremer said in 2004 that there were not enough U.S. troops in Iraq during his time in Iraq and that his requests for more troops were not met. According to a statement put out by DePauw University (on-line here), Bremer said that "The single most important change - the one thing that would have improved the situation - would have been having more troops in Iraq at the beginning and throughout … Although I raised this issue a number of times with our government, I should have been even more insistent." Bremer said in July 2003 (on-line here) that he had not asked for more troops and that the United States had "substantial, and in my belief adequate, numbers of troops."

Recruiting.

Military recruiters are facing a "very, very challenging environment," U.S. Army Recruiting Commander Major General Michael Rochelle said in a May 20 press briefing (on-line at http://www.defenselink.mil/transcripts/2005/tr20050520-2881.html). Rochelle specifically identified the following factors making recruiting more difficult than at any time in his 33 years of service: "very low" unemployment, continued combat in Iraq (which Rochelle referred to as "the first time that the all-volunteer force has been challenged in sustained land combat"), and the "very, very low propensity to enlist" among young Americans and their parents, coaches, and other "influencers" (who Rochelle said are now less inclined to recommend military service).

Some have alleged that quotas on army recruiters (they are expected to "enlist two young men or women each month," Rochelle said on May 20) put too much pressure on recruiters and have led to incidents of misconduct. On May 20, Rochelle said that there had been seven incidents where the Army had enough information to suspect a particular recruiter of committing an impropriety; he described these incidents as "taking shortcuts." Rochelle called a stand-down day on May 20 specifically to emphasize values in the recruiting process.

Data analyzed in a new report by the federal Government Accountability Office (GAO) on military recruiting abuses has revealed a 50% increase in recruiter abuses from 2004 to 2005. The report found that allegations of abuse increased from 4,400 cases to almost 6,500 and substantiated cases from 400 to nearly 630. Perhaps most strikingly, criminal violations by recruiters rose from 30 to 70 cases. The GAO cautioned that these numbers represent only the data that has been collected, with the GAO’s report explaining that various branches of the military do not track all allegations of recruiter abuses. Consequently, the report’s abstract states that the data examined “likely underestimate[s] the true number of recruiter irregularities.” In defining “irregularities,” the report described them as “willful and unwillful acts of omission and improprieties” that are either perpetrated or alleged to be perpetrated by recruiters in order to “facilitate the recruiting process for an applicant.” These “irregularities” encompass a wide range of abuses including administrative paperwork errors, failing to disclose disqualifying eligibility criteria, instructing recruits to hide medical conditions or legal problems, falsifying documents, and sexual harassment.

Santiago v. Rumsfeld (9th Cir. - May 13, 2005)

Stop Loss "Back Door Draft" Challenges

In Doe v. Rumsfeld, a decorated combat veteran serving in the Army Reserve filed the first challenge to the Army's current "stop loss" program, under which a National Guard member had his enlistment term extended involuntarily for combat duty in Iraq. The reservist is identified as "John Doe" for reasons of privacy. The case has been fully briefed and is awaiting oral argument in the Ninth Circuit. (No. O5-15689).

Under the stop loss program, the Army has prevented tens of thousands of soldiers from retiring or leaving the military upon completing their enlistment terms so that they may be deployed to or kept in Iraq. The petition asserts that the program is unfair, unconstitutional, unauthorized by law, and in breach of Doe's standard enlistment contract. The stop loss program has been widely criticized as a "backdoor draft.

Our office most recently filed a surrebuttal on behalf of a John Doe client (some of the reservists are identified as "John Doe" for reasons of privacy) and a "friend of the court" (amicus) brief in support of another soldier's challenge to the stop loss "backdoor draft" before the Ninth Circuit Court of Appeals, Santiago v. Rumsfeld, No. 05-35005 (9th Cir.).

Emiliano Santiago enlists in the Army National Guard on June 28, 1996. His contract and his understanding is that his enlistment is for eight years. Which is, after all, what everyone else understands the enlistment period to be as well, since that's what the Army says it is. Then, eight years later, in June 2004, Santiago is told that he's not going to be let go: that the President has signed a "stop-loss" order that extends his contract. As a result, notwithstanding his eight-year contract, Santiago is told (in writing) that "[a]s a result of the unit alert, your [estimated termination of service] date was changed to 24 December 2031 and it is scheduled to remain so until [your] unit is removed from alert status or until demobilization is completed."

Santiago says: "But we had a deal!" The Army says: "Tough." And the Ninth Circuit agrees. Judge Canby holds that the Army is indeed bound to its contracts, but notes that there is a tiny clause in Santiago's contract that says the following: "Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed forces, REGARDLESS of the provisions of this enlistment/reenlistment document." As a result, Judge Canby concludes, the Army can do what it wants. Lawsuit dismissed.

I certainly understand Judge Canby's opinion. I only have two comments. First, I think that this result might well -- and perhaps should -- make people reluctant to join the armed forces in the first place. In the modern era, people join the armed forces for a variety of reasons, but nearly all of them expect the deal that they were promised. And the required length of service is -- especially nowadays -- a critical part of the deal. (If there's any doubt in this regard, just look at the Army's recent "15-month" active-duty enlistment offer, which is the shortest active-duty offer in the history of the service.) Since the fine print in Santiago's deal is the same fine print in everyone's deal, the Army's deal is, essentially, that the deal is whatever they say it is. Which should make people reluctant to join the armed forces if they're doing so in reliance upon a particular deal.

Second, the panel purports to be applying routine contract principles. But aren't they really doing something quite different? Do you really think this same rule would apply to any other type of contract? For example, if I signed up for Sprint and the fine print in the contract said "This contract can be changed by us at any time, in any way," and then Sprint thereafter told me that I had to stay with them until December 24, 2031, there's no doubt in my mind that the Ninth Circuit would apply routine contract principles to hold that this clause did not authorize Sprint to make such a change. Especially if, like the Army, Sprint had routinely gone around and told everyone that the deal was only for eight years, both in every single advertisement and in the office of every single Army/Sprint recruiter.

So we have a special rule for the Army. And perhaps that's legitimate. But if that's what we're doing, Judge Canby should be more forthright about it. Say something like this: "Every single recruit is hereby held to be on constructive notice that, once you sign up, you can be kept in for as long as they want you." Or, even more boldly, require the Army to actually tell potential enlistees of that fact -- either in the contract or beforehand -- rather than merely insert a meely-mouthed provision that in no way suffices to actually inform the recruit of their selected fate. Whichever way one might go in this regard would probably be better than Judge Canby's claim that this case can be decided based upon the same routine contract principles applicable to any other contract. I just don't think that's actually the case.

It might not be fair. But, for now, it's the law.

Santiago v. Rumsfeld

By Geov Parrish

April 13, 2005