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Military Enlistment: or When a Contract Isn't Contract

Santiago v. Rumsfeld

by JORGE MARISCAL

It is an axiom among activists working in the area of counter-recruitment that the enlistment contract isn’t worth the paper it’s printed on. What this means in practical terms is that whatever a recruiter promises to deliver to a new recruit-specific jobs or assignment, length of service, benefits, or even citizenship-can be withdrawn or changed at any time.

Section C, Paragraph 9(b) of the enlistment contract states:

"Laws and regulations that govern military personnel may change without notice to me. Such changes may affect my status, pay, allowances, benefits, and responsibilities as a member of the Armed Forces regardless of the provisions of this enlistment/reenlistment document."

While this loophole is well known in counter-recruitment circles, it obviously is not something recruiters emphasize to young people and their families. Major David Griesmer, public affairs officer for the Marine Corps Recruiting Command based in Quantico, Virginia, for example, recently described the recruitment process to the San Francisco Chronicle:

"If you don’t like what you’re hearing, you can walk away. And I can tell you that everything is spelled out in a contract when the applicant signs."

But the Pentagon’s stand down of all recruitment activities on May 20 was a warning flag signaling widespread recruiter deception and unethical conduct. More important, the recent case brought by a National Guard soldier against the Pentagon puts the lie to Major Griesmer’s claim and sheds new light on the true nature of the military enlistment contract, a contract that according to this recent court decision is no contract at all.

In Santiago v. Rumsfeld, the curtain concealing the realities of military service is pulled back to reveal the literal meaning of G.I. (government issue) or the soldier as property. Emiliano Santiago, the young Mexican immigrant who brought the case, was not a political activist and did not oppose the wars in Afghanistan and Iraq.

The son of migrant farmworkers, he enlisted in the Oregon National Guard for one of the more intangible reasons young people sign up-the lure of the uniform. He recalls his recruiter telling him that the National Guard would never leave the United States "unless there was World War III."

For almost eight years, the recruiter’s partial truth held up for Santiago even though thousands of National Guard troops already had been sent to Afghanistan and Iraq. With only two weeks left in the Guard, Santiago was ordered to report to Fort Sill where his unit was prepariing for deployment to Afghanistan.

Because his term of enlistment was technically over Santiago decided to challenge the government. Currently more than a dozen soldiers affected by the so-called stop-loss policy have filed similar lawsuits. Between 40,000 and 50,000 active-duty, reserve, and National Guard personnel have had their terms extended under the policy since 2001.

Santiago and his attorneys lost the first round in the U.S. District Court in Oregon, and immediately appealed to the U.S. Ninth Circuit. On May 13, 2005, a panel of three judges upheld the lower court’s ruling and thereby validated the government’s position.

In their opinion, the judges invoked Title 10 § 12305(a) of the U.S. Code which reads in part:

"the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States."

According to Santiago’s lawyers, such presidential power is granted only when Congress has declared war or a national emergency. President Bush declared a national emergency on September 14, 2001 but Congress has yet to do so. The presidential decree has been renewed each year since 2001 even though U.S. Code Title 50 § 1622 reads:

"Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.."

The Ninth Circuit Court’s decision underwrites the almost unlimited power of the executive branch in national security situations, affirming the government’s contention that "threre is no basis for the notion that principles of construction drawn from commercial contract disputes can be invoked to transform a vital federal statute into a dead letter, especially in the crucial area of the President’s power to command the military and protect this Nation’s security."

Of greater interest to counter-recruitment activists are the arguments made about the legal status of military personnel. In both the district court case and the Ninth Circuit case government lawyers argued that contractual obligations did not apply in the Santiago case because upon entering the military the status of a "citizen" shifts to that of "soldier."

Basing its argument on Bell v. United States (1961), itself based on an 1890 decision, the government stipulated: "Enlistment in the armed forces does not constitute merely a bargain between two parties, but effects a change of status by which ‘the citizen becomes a soldier.’" Under this new status, "common law contract principles yield to federal statutes and regulations." The government further argued: "The terms of an enlistment contract certainly cannot circumscribe the authority of the Presidentto conduct the nation’s military policy."

The Ninth Circuit’s ruling reiterated that the military enlistment contract "provides notice that changes in federal law-even if inconsistent with the written terms of the contract-would apply" given that "the contract itself specifies that unlisted contingencies may cause an alteration in the agreed upn terms." In short, every recruit who signs an enlistment contract has just signed away his or her fundamental rights as a U.S. citizen.

Acknowledging the "disruption, hardship, and risk that extension of his enlistment is causing Santiago to endure," the Ninth Circuit nevertheless upheld the original decision and in effect sent Santiago packing to Afghanistan. Post-trial comments by the Pentagon spokesmen denied that the purpose of stop-loss orders was to compensate for recent recruitment shortfalls.

Rather, argued Lt. Col. Bryan Hilferty, "It’s about teams I think most Americans would prefer that, even if they’re opposed to the war, that they fight together as teams." Apparently, as Emiliano Santiago learned the hard way, the U.S. military is a "team" that recruits young men and women under false pretenses and then never allows them to quit. Santiago’s new estmated date of separation from the National Guard is December 25, 2031. The government has assured him that the date is simply an "administrative convenience."

JORGE MARISCAL teaches Chicano Studies at the University of California, San Diego. He is a member of Project YANO (San Diego), a counter-recruitment and anti-militarism organization. Visit his blog at: jorgemariscal.blogspot.com/ He can be reached at: gmariscal@ucsd.edu