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February 3, 2005

Ruling Expected Soon in law Prof’s Challenge of Extended Enlistments

In any given month since the war, about 7,000 American soldiers in Iraq and surrounding countries are serving involuntarily under enlistments extended by the military, according to the U.S. Army. Eight of these soldiers asked Pitt law professor Jules Lobel, long-time arbitrator of constitutional rights, to file a lawsuit on their behalf objecting to the enlistment practice in federal court in Washington D.C. A ruling is expected any day, according to Lobel.

The lawsuit grabbed headlines in The New York Times and major media outlets, igniting a national debate on the involuntary extension of military service, called Stop Loss policy. The military defends the practice, which includes synchronizing the discharge of entire military units to keep them cohesive.

Lobel, who took the case pro bono, said that he was encouraged to see public debate on the issue, particularly Republican Senator John McCain’s disagreement with the policy. And according to a USA Today poll, about 60 percent of the American public disagrees with the Stop Loss policy.

However, Lobel anticipates an unfavorably ruling in federal court. “The judge that we drew was not favorable to our case – he’s an ex-military man who was an officer. If we lose before him, we’ll appeal it.”

Several similar lawsuits preceded Lobel’s and he believes that at least several more are in the works. Since Lobel filed his lawsuit, he said he’s been contacted by at least 20 other soldiers who are unhappy with the Stop Loss policy.

According to Lobel, he’s already won something in the court of public opinion – publicity for what he feels is “the dishonest treatment of the soldiers we ask to fight for our country.”

Take the case of plaintiff David Qualls of Arkansas, a veteran who signed up for the military’s “Try One” program. “The army advertises it as a trial program for veterans where you can try one year and then decide if you like it,” explained Lobel. “And if you like it, you can re-enlist for a full term.” Qualls decided he didn’t want to re-enlist, he wanted to go home, back to his trucking business and family. Instead, the military extended his enlistment and sent him to Iraq. Lobel and another attorney filed an injunction to stop Quall’s tour in Iraq, but lost. While they lost the injunction, the case covering all the soldiers, including Qualls, is still pending.

The service extensions are taking a toll on families and the livelihoods of soldiers, Lobel explained. Qualls’s truck sits idle, rusting. “He doesn’t know when he comes back if he will be able to pick up business again,” said Lobel. “His wife and child are extremely depressed to the point of taking medication. They don’t have money to pay the mortgage. And Qualls has lost 80 percent of his income.”

Another plaintiff, who is a newly recruited police officer, doesn’t know if his job will be there when he returns home.

“What they’re doing is signing people up for this Trial One program and not telling them that their term of service could be involuntarily extended,” Lobel said. (Three of the eight plaintiffs are in the Trial One program.) “What’s happening is that three to nine months after soldiers join the military, they are told that they are going to Iraq and their enlistment will be extended for who knows how long.”

Another plaintiff’s pay stub stated that his military service extends to Dec. 24, 2031. It’s not a typo, according to Lobel.

“They tell you when they are extending your enlistment, you can sign up, voluntarily for more time — two, three, or six years. But if you don’t, they set arbitrary dates for length of enlistment. Now, nobody believes they will actually hold that soldier for that amount of time. I think it is a form of coercion”

The practice of involuntarily extending service time didn’t begin until after the 1980s, according to Lobel. Soldiers counted their days to discharge in Vietnam and got to leave. “It was used very briefly during the first Persian gulf war. But only for soldiers who were trained specialists in a particular area like rocket launching. They needed this person who had a skill that nobody else in the unit had. The current war in Iraq is the first time, in our knowledge, that they are keeping whole units on Stop Loss.”

Given that soldiers sign contracts stating the duration of their service, whether it is for Stop Loss or another program, Lobel sees the case as a breach of contract. “This is a case where the facts aren’t in dispute. The facts are they all have contracts that say when they will be out of the service. The question is, what are the legal consequences? The government says there are no consequences because they can treat these contracts any way they want to.”

Lobel took on the case, partly, because he thought the soldiers had a good claim. “It was an injustice that they signed an agreement where they complied with their side of the bargain and the government did not treat them fairly.”

Besides the importance of challenging injustices, Lobel wants the case known so the American public can weigh in on how the military treats soldiers for subsequent conflicts. “If the government needs more soldiers, they can’t manipulate people or dishonestly dragoon people into service.”

-Mary Ann Thomas

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