December 06, 2004

Military, Law and Arlo Guthrie

by PG

Interesting both individually and in combination:

Lawsuit against military 'don't ask' policy; Ex-military challenge ban on gays after Supreme Court ruling - Twelve gays who were expelled from the military because of their sexual orientation filed a lawsuit Monday challenging the Pentagon's 11-year-old "don't ask, don't tell" policy.

Eight Soldiers Plan to Sue Over Army's Stop-Loss Policy - each says he has been prevented from coming home for good by an Army policy that has barred thousands of soldiers from leaving Iraq this year even though the terms of enlistment they signed up for have run out. And each of these eight soldiers has separately taken the extraordinary step of seeking legal help.

Phillip Carter is quoted briefly in the second article and provides additional analysis here. From my non-military 1L perspective, the two big problems he perceives with the eight soldiers' suit seem, if not conflicting, to be working in different frames. On one hand, the soldiers signed a contract for a limited enlistment period but with fine print that permits the military to extend that time at its discretion. On the other hand, we're at war and the government has a lot of power, including the power to draft people to serve wholly involuntarily. The power to extend a tour of duty for someone who signed up to join appears much smaller by comparison.

But I can't find a common legal territory between the two. The first is couched in the language of contract, in which choice waxes large. The soldiers are unlikely to get their bargan ruled unconscionable. Neither their status nor the government's behavior during the bargaining is incompatible with a valid contract, and the government's pay and benefits surely would count as adequate consideration.

The question of whether the government has breached its end of the deal is more interesting. I wonder whether soldiers who are forced to forego the compensation they would have received from the civilian jobs they expected to enter upon the end of the contracted tours of duty, or who otherwise made plans in reliance on that end, might sue for expectations damages. (Yes, I have my contracts final on Friday.)

The government's authority to retain soldiers in Iraq works in an entirely different way. Individual choice and agency are sublimated to the political process, so that if Congress authorizes military action and gives the bureaucracies within the executive the power to implement stop-loss and related policies. Again, in a context where the draft is constitutional, I just can't see a court's taking the side of volunteer soldiers.

Speaking of the draft, Arlo Guthrie offers advice to those trying to get out of military service:

Walk into the shrink wherever you are, just walk in, say, "Shrink... you can get anything you want at Alice's Restaurant," and walk out.
You know, if one person, just one person does it, they may think he's really sick and they won't take him.
And if two people do it, in harmony, they may think they're both faggots and they won't take either of them.
As a literal matter -- and even without the singing in harmony -- Carter is inaccurate in saying that there is "No Way Out." There is no honorable-discharge, retain-your-benefits way out of the military, but I don't think that in the contract frame, where specific performance is rarely the remedy for a breach, the military actually can force you to stay if you don't want to. Certainly the mindset among the soldiers who are challenging the stop-loss policy seems to be of staying within the system:
Mr. Qualls is due back at his radio post on a base north of Baghdad this coming weekend. He said he hoped a judge would issue a temporary restraining order and allow him to stay home. But if he loses, he said, he will get on that plane.
Also staying in the system are the 23 Army reservists who, lacking properly maintained and armored vehicles, refused a mission transporting fuel along a dangerous road in Iraq. Instead of court-martialing them, the military will be imposing lesser penalties like extra duties and reduction in rank.

December 6, 2004 05:43 PM | TrackBack

TITLE 10 United States Code,Subtitle A, PART II, CHAPTER 39, paragraph 671a says - "Unless terminated at an earlier date by the Secretary concerned, the period of active service of any member of an armed force is extended for the duration of any war in which the United States may be engaged and for six months thereafter."
As for the war -
For those who quibble what this is -
"JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President."

Posted by: Don at December 6, 2004 07:51 PM

How about a third party suit on behalf of the families of these service members?

Posted by: Infidel at December 8, 2004 12:04 AM
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