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If the Bush administration can’t show that the occupation of Iraq is protecting America from terrorists, then there’s no legal basis to keep reservists on active duty and require them to serve in that country, according to a lawsuit filed by a California national guardsman in Sacramento, Calif., federal court. The suit challenges the Army’s “stop-loss” policy of involuntarily extending enlistments to cover military personnel needs-the so-called “backdoor draft” criticized by U.S. Senator John Kerry, the Democratic presidential nominee, in the second and third presidential debates. Doe v. Rumsfeld, No. CIV S-04-2080. The Pentagon issued its latest stop-loss order in June, delaying separations and retirements and requiring tens of thousands of guardsmen to return to combat duty well beyond their agreed-upon active service. Stop-loss, say Army officials, ensures effective mobilizations and keeps on active duty personnel essential to readiness, and it will be used as needed as long as a national emergency exists. Writ of habeas The Sacramento suit, filed earlier this month, and a twin action filed in San Francisco federal court in August, Doe v. Rumsfeld, No. C 04 3361, are framed as petitions for a writ of habeas corpus or declaratory relief to release the guardsmen, on the grounds that stop-loss extensions are invalid, violate the soldiers’ right to due process and breach the terms of their enlistment contracts. The challenge was mounted by the Military Law Task Force of the National Lawyers Guild, in association with the Law Offices of Michael S. Sorgen, based in San Francisco. The office’s Joshua Sondheimer, who is representing the guardsmen pro bono, said the guild had chosen Sorgen because of his success with Vietnam-era draft challenges. Guild spokeswoman Marguerite Hiken said, “We are asking the federal court to uphold their lawful rights and not allow the Army to create a new category of indentured servitude.” The suits argue that the authority for the stop-loss policy is Executive Order No. 13223, issued days after the 2001 terrorist attacks against the Pentagon and the World Trade Center. It authorizes the U.S. secretary of defense to order the Ready Reserve of the armed forces to active duty “to respond to the continuing and immediate threat of further terrorist attacks.” However, the Sacramento suit states, “Iraq no longer poses any threat of terrorism against the United States, if it ever did.” The involuntary extension of the guardsman’s enlistment to support the U.S. occupation of Iraq bears no reasonable relationship to the threat of terrorist attacks against the United States, the suit alleges, so the stop-loss order exceeds the purpose of the executive order and must be declared invalid. Lt. Col. Michael Jones, chief of recruiting and retention at National Guard headquarters in Washington, responded that the suits represent the views of “only two individuals out of the 200,000 who are taking this action.” Attorney Sondheimer confirmed that he knows of only his two suits and is “surprised” there have not been more. He noted there is a related suit filed by a Capt. Todd Parrish on July 8 in federal court in Raleigh, N.C. Parrish v. Brownlee, No. 5:04-CV-459-FL(1). Parrish maintains he cannot be deployed with his unit to Iraq because he has already served the eight years called for in his ROTC contract. Parrish’s attorney, Mark Waple of Fayetteville, N.C.’s Waple & Associates, said he had been contacted by about 35 other attorneys around the country who are considering suits, but have not yet filed actions.

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