Freedom Socialist • Vol. 26, No. 3 • June-July 2005

Emil Santiago after his hearing, April 6, Seattle.

There's a dirty not-so-little fact about the “all volunteer” U.S. military. It's called “stop loss,” under which the government claims the right to keep soldiers indefinitely past their enlistments. Now some of these soldiers are fighting to expose and escape it.

The Military Law Task Force of the National Lawyers Guild (NLG) estimates that tens of thousands of GIs are affected. It is being used to maintain U.S. troop levels without reinstating the hated draft.

Many call it a backdoor draft; another name for it is involuntary servitude.

Bitter breach of contract. Emiliano Santiago served in the Oregon National Guard for his full eight years, never called to active duty. Four months after his end date, he was ordered to go to Afghanistan. He was told his new termination date was the end of 2031! By that time, he'd be in his fifties. Santiago decided to sue the government over the basic issue of fairness.

On April 6, this reporter spent the day in and outside of court, hearing legal arguments, seeing the distress of Santiago's family, and witnessing the solidarity extended by Military Families Speak Out and other supporters. About 50 people rallied outside Seattle's University of Washington Law School, where a three-judge panel of the 9th Circuit Court of Appeals heard the case. Everyone was silently asking ourselves, would Emiliano Santiago soon be in war-ravaged Afghanistan?

Steve Goldberg of the NLG passionately argued that the enlistment contract violates the constitutional guarantee of due process, because stop loss is a denial of liberty that the contract fails to disclose. Furthermore, Santiago's enlistment expired before his unit was called to active duty. In a legal brief, Santiago's lawyers wrote, “Conscription for decades or life is the work of despots…. It has no place in a free and democratic society.”

Goldberg also argued for an emergency injunction against Santiago's deployment. The panel of judges decided against the injunction with brutal swiftness that very afternoon, followed swiftly by confirmation from the circuit court as a whole. Judge Sandra Day O'Connor then turned down Supreme Court consideration of the case.

Santiago was sent to Afghanistan in mid-April.

Not the end of the story. While the emergency injunction was turned down, the case is not dead. The court said it would rule against Santiago, but its written decision will determine the possibility of further appeal.

A class-action stop-loss suit has also been filed by the Center for Constitutional Rights on behalf of David W. Qualls and seven soldiers who are anonymous because they are currently serving in Iraq and Kuwait. That case has not yet gone to trial.

Meanwhile, it is the job of antiwar activists, especially those with the freedoms of civilians, to demand fair play for soldiers being held hostage by our government.

As Santiago's lawyer Goldberg says, “Cases like this are part of an overall struggle, and organizing against military recruitment is how we can use the suit now.” Since the military doesn't tell young people being pressed to enlist of the hidden stop-loss provision, activists are the ones who can make sure they hear of it before it is too late.

Courageous initiatives like those undertaken by Emiliano Santiago and the members of the class-action suit will expose the government's duplicity and help to end a terrible injustice.