9th Circuit Won’t Stop Guardsman’s Deployment

The 9th Circuit has refused to halt Oregan Guardsman Emiliano Santiago’s deployment to Afghanistan, despite his service obligation having ended.

Appeals court won’t stop guardsman’s deployment (AP)

For the second time in two days, a federal appeals court declined to halt an Oregon National Guardsman from being deployed to Afghanistan on Friday. Emiliano Santiago, 27, an electronics technician and a helicopter refueler now living in Pasco, Wash., is fighting his deployment because his 8-year service agreement expired last year. His lawyers told the court Santiago is the victim of a “backdoor draft.” On Wednesday, a three-judge panel of the 9th U.S. Circuit Court of Appeals, sitting in Seattle, declined to halt his looming departure. On Thursday, the court declined to rehear the case with 11 judges.

No U.S. federal appeals court has sided with similarly situated military personnel fighting their deployments. The courts have generally upheld the so-called “stop loss” law that authorizes President Bush to suspend service agreements of many armed forces personnel for national security reasons. Thousands of soldiers have been redeployed under stop loss orders.
In court briefs, the government told the appeals court Thursday that “soldiers are essential to the national security, and their service in the face of hardship is a crucial source of the strength of our nation.”

Santiago’s attorneys said he would likely appeal to the Supreme Court.

The San Francisco Chronicle has more:

Santiago, now of Pasco, Wash., joined the National Guard at 18, as a junior in high school and served in a unit that refuels helicopters. Less than three weeks before his enlistment was to expire last June, he was told that it was being prolonged by stop-loss. After the one-year deployment order to Afghanistan was issued in October, Santiago was told that his enlistment had been extended for 27 years, to 2031.

His suit claimed that the order violated his enlistment contract, which provided for an extension in the event of a war or national emergency declared by Congress and did not mention presidential orders. But government lawyers argued, and a federal judge ruled, that the contract did not limit the Army’s authority to extend enlistments under Bush’s national emergency declaration.

Goldberg, part of a National Lawyers Guild team challenging stop-loss orders, said the government’s position helped to explain current shortages in military enlistments. “Why would someone sign up,” he asked, “when they’re told that a specific (contract) term may mean nothing?”

Indeed. The Oregonian dubs this “A Catch-22 for Army recruiting.”

This ruling was correct. Under the terms of enlistment, the Army can extend soldiers’ tours of duty under certain emergency circumstances. If federal judges forced the Army to bend the rules and ignore the “stop-loss” policy for Santiago, a few thousand other weary or reluctant soldiers might ask the courts for similar treatment.

Still, the Pentagon isn’t making many friends with its stop-loss policy. More than 12,300 full- and part-time Army soldiers have been held beyond their service commitments, as Francis reported. One was Spc. Eric McKinley, a 24-year-old bakery worker and Guardsman from Corvallis. He was killed by a bomb in Baghdad last June, two months after his service was supposed to end.

Today, the Army National Guard is stuck in a Catch-22. It can’t recruit and retain enough people to take the place of citizen-soldiers such as Santiago. But the Army can’t let go of Santiago until someone volunteers to take his place.

Exactly right.

As I noted in my TCS piece, “Backdoor Draft?,” I disagree with those, like Sen. John McCain, who argue that making soldiers slated to go into the Individual Ready Reserve serve on active duty during times of war is a “backdoor draft.” All soldiers sign up for eight years; the ability to go into reserve status after one’s initial active duty obligation is contingent on the needs of the service. Santiago’s case is different, though. He’s done his eight years. I could even understand requiring him to finish out his overseas rotation if the tour began during his obligation period. But he was stateside serving in the National Guard.

Prior to Vietnam, it was understood that those in the military during wartime were in “for the duration.” Folks that went in after Pearl Harbor were usually on the hook through VJ Day and beyond. In an all-volunteer force, though, this concept is problematic. Once a soldier’s eight year obligation is up, it is very difficult to argue that he should be forced to remain even longer when those who never volunteered in the first place have no commitment at all.

FILED UNDER: Law and the Courts, Military Affairs, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Fersboo says:

    I’d wish they could ‘stop-loss’ me. After a month or two refresher/get-back-in-shape course, this 36 year old would relish the challenge of being a cavalry scout again. Otherwise, the wife’s executive order received shortly after 9/11 trumps any desire for returning to the military.

  2. Michelangelo says:

    Anyone who enlists should expect that they will be “stop-lossed” at least once during their career (for me it’s been 3 or 4 times). It’s right there in the contract–the needs of the service trump your needs, desires, and everything else about you, every time. If you can’t handle that, don’t sign on the dotted line. How difficult is that to understand? Yet here we have an individual who thinks HE can decide when he’s done.

    After 19 years of service I have lost all patience with people like that. I tell them, “You knew what you were getting into,” and if they claim they didn’t, I say “Then you should have.” We’re not running a damn Cub Scout camp here. If you want to claim you are a responsible adult, you have to take responsibility for your own actions and where you sign your name.

  3. James Joyner says:

    The guy was 17 when he signed the contract and was almost certainly lied to by his recruiters about the nature of what he was signing. Plus, he signed up for the statutory limit of 8 years not an indefinite commitment.

    If you’ve been in for 19 years, you’ve made a choice to re-enlist multiple times. He didn’t.

  4. Michelangelo says:

    The guy was 17 when he signed the contract and was almost certainly lied to by his recruiters about the nature of what he was signing. Plus, he signed up for the statutory limit of 8 years not an indefinite commitment.

    He can still read, right? If the guy took the recruiter’s word rather than reading the contract, it’s his own damn fault.

    Personally, I think he understands quite well what the contract spells out and was just trying to use whatever legal argument he could to avoid performing his duty.

    If you’ve been in for 19 years, you’ve made a choice to re-enlist multiple times. He didn’t.

    He’s not being forced to re-up, his enlistment has been extended due to the needs of the service. When the service doesn’t need him anymore he is free to leave.

    Reality can be a hard teacher sometimes.