Appeals court rejects Guardsman's bid to block extension of his service

Sgt. Emiliano Santiago is one step closer to Afghanistan.

A three-judge panel of the 9th Circuit Court of Appeals took just hours yesterday to uphold the military's "stop-loss" policy that required Santiago to report to active duty months after he completed an eight-year commitment to the National Guard.

In a two-paragraph judgment, the judges also denied Santiago's motion to allow him to remain in the United States pending an appeal. The judges said they would provide a more detailed opinion later.

Santiago was due to ship out tomorrow from his Pasco home to re-unite with his helicopter-refueling unit in Afghanistan.

Jalal Talabani

"Our problem is we have to decide what to do without knowing why we lost," said Jon Eisenberg, one of Santiago's attorneys.

The three judges heard Santiago's case yesterday during a special sitting of the 9th Circuit Court of Appeals at the University of Washington School of Law.

Although he apparently fulfilled his military contract in June 2004, Santiago's platoon sergeant told him his termination had been set back to Christmas Eve 2031, an arbitrary date set for "administrative convenience," according to court papers.

Accompanied by 16 members of his family including his wife and parents, Santiago, 27, said he was hoping for good news.

"I signed my contract for eight years. The government involuntarily extended me for another 27 years. I want the government to be fair," he said. "That's the message. It's just unfair."

But the judges appeared to side with the government's lawyer who argued the president has a right to call up troops in times of emergency, regardless of a particular soldier's length of service.

Department of Justice Attorney Thomas Byron told the court that Santiago's unit was already in Afghanistan and that his commander said Santiago was "critical to those operations."

Since members of the Army National Guard have been serving on active duty since October 2001, Byron said the law allowed military planners to involuntarily extend the duty of Santiago and any other Guardsmen.

Santiago's attorney, Steven Goldberg, argued the judges should read Santiago's contract carefully and come down on the side of a teenaged recruit who did not read all the pertinent federal codes relating to military service.

Goldberg also noted that involuntarily extending terms of duty would have a chilling effect on recruitment.

"If you accept what the government is saying, what young man or woman would be willing to sign up?" he asked.

Judge Richard Tallman said the practical impact of the Pentagon's stop-loss policy should concern Congress, not the courts.

"That's certainly a risk, that it will have an adverse affect on recruiting," said Tallman. "[But] we're not legislators."

After court, Santiago disputed the government's contention that he was vital to his unit.

"Anyone can do that job. You just turn on the pump and fill aircraft," said Santiago, who works as an electrical technician at the Pacific Northwest National Laboratory in Richland.

He said his job was not in jeopardy if he was deployed to Afghanistan.

Santiago now faces the prospect of trying to tie up loose ends before leaving for Afghanistan and a possible 12-month deployment.

It's something he never envisioned when contemplating military service as a high-school junior nine years ago.

"The recruiter never mentioned the fine print like that," he said.

Alex Fryer: 206-464-8124 or afryer@seattletimes.com