Firing Back

Michael Hoffman, who lives outside of Philadelphia, was three days away from leaving the Marine Corps when the order came down: He was being sent to Iraq. There was no advance notice, no extra money and, of course, no guarantee that he would come back alive.

Hoffman, like thousands of others who volunteered to serve their country, are being forced to stay long after they planned on leaving, because of the "stop loss" orders authorized by statute. The orders – which have been called "back-door drafts" – allow the military to suspend all laws and regulations and force all personnel to continue serving. The orders apply to those whose tours of duty expire and to those who are eligible for retirement.

"I just thought you leave the military and you can get called back if they need you," says Hoffman. "With the 'stop loss' orders, you never leave. They extend your contract, which is something nobody really understands when they first sign-up."

The emotional turmoil aside, Hoffman feels fortunate his extension was only a few months and he left the Marines about a year ago, without having lost much. A friend of his lost a good job with benefits and was forced to take his wife and child to live with family members after departure from military service was delayed.

Now comes a lawsuit, filed last week in federal court in San Francisco, challenging the military's controversial policy on behalf of "John Doe," a decorated veteran and married reservist in the California Army National Guard, asking his "stop loss" order overturned. The lawsuit argues that the policy, based on an executive order issued after Sept. 11, 2001, doesn't apply to enlisted personnel. It further argues that the order is only valid after war is legally declared by Congress. Among the named defendants are Defense Secretary Donald Rumsfeld, Army Secretary Les Brownlee and John Doe's company commander.

"People don't surrender (all) rights when they go into the military," says Marguerite Hiken, co-chair of the Military Law Task Force of the National Lawyers Guild. "The government can't hold you indefinitely. If the war on terrorism never ends, 'stop loss' doesn't end. These people never get out. The military is saying we control you completely."

John Doe's lawyers say 12 years of exemplary, decorated military service, with nine years of active duty, is enough. His "stop loss" order could mean two years in Iraq, although he has already served a tour of duty there and alhough his contract runs out in December, say his lawyers, Michael S. Sorgen and Joshua Sondheimer.

Under a previous "stop loss" order, Doe was told that the Army would have reactivation dibs on him until the year 2043. That order was lifted when that term of enlistment ended. Doe re-upped for a short hitch in the reserves. In July, he was told his stint had been extended for two years and his National Guard unit was mobilized for service in Iraq.

"This lawsuit seeks to stop the forced retention of men and women like John Doe who have already fulfilled their service obligation to the country," says Sorgen. "Their enlistments should have ended, and they should now be entitled to return to their families." John Doe chose a limited one-year commitment in the reserves in large part to spend time with his family, the lawyers say. He has two young daughters.

"The burden of maintaining the high troop levels that we have shouldn't be on the shoulders of the people who have fulfilled their service obligation," says Sondheimer. "Perhaps over 100,000 servicemen have been subjected to 'stop loss,' since the program started." The government seems to think that there is no limit to how many times "stop loss" orders can be used, he adds.

The Department of Defense says the Army is the only branch now using "stop loss" orders. The secretary of defense delegated stop loss authority to the individual secretaries of the armed forces, said Lt. Col. Pamela L. Hart. The "stop loss program is authorized by statute and allows the military services to retain trained, experienced, and skilled manpower by suspending certain laws, regulations, and policies that allow separations from active duty, including retirement," she explains in an e-mail response to questions. About 20,000 soldiers are affected by the orders, Lt. Col. Hart says.