National Guard's "backdoor draft" faces challenges

By Rone Tempest
Los Angeles Times

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The lawsuit is seen as the first serious court test of the so-called backdoor draft, in which thousands of National Guard and Reserve troops have been called on to meet increasing military staffing needs in Iraq.

"Ultimately, this is about fairness," said San Francisco lawyer Joshua Sondheimer, who represents both soldiers, who have not been publicly identified. "It is not fair or appropriate to put the burden of having an expanded military on the backs of those people who have already done their duty."

Both soldiers are combat veterans who signed up under the National Guard "Try One" program reserved for veterans. The program, offered nationwide, allows the recruit to bypass basic training while enjoying military education and family medical benefits for a one-year trial period.

Before the soldiers' one-year enlistment expired, however, they were called up under a stop-loss program for 18-month tours that include training and deployment in Iraq.

The military contends that this involuntary extension of troops was authorized by Executive Order 13223, issued by President Bush on Sept. 14, 2001, in reaction to the Sept. 11 terrorist attacks.

Attorneys for the soldiers, citing the report of the Sept. 11 commission that found no evidence of any "collaborative operational relationship" between Iraq and al-Qaida terrorists, say the executive order did not cover "nation-building service in Iraq."

In the absence of any declaration of war by Congress, the soldiers say the involuntary call is a violation of their enlistment contract.

"This is not a frivolous lawsuit," said Michael Noone, a military-law specialist at Catholic University of America and a former judge advocate in the Air Force. "I had assumed the government had an ironclad case, but the complaint looks valid on its face. I'm really curious how the government will respond."

The "backdoor draft" has become a part of the presidential debate, with Democratic candidate John Kerry speaking against it. The opposition is not strictly partisan. Arizona Sen. John McCain and other Republicans also have spoken against the practice.

A victory in court for the two soldiers would be bad news for National Guard recruiters. For the first time since Sept. 11, 2001, the nation's oldest Reserve fighting force has not met its recruiting goals. Seeking a force of 350,000 troops by September, Army guard recruiters fell more than 7,000 short.
 
Andrew Exum, a former Army captain in Iraq and author of a recent book, "This Man's Army," critical of U.S. military policy, said there is a well of discontent among soldiers caught in the stop-loss program

"Several are former soldiers of mine in Iraq right now," Exum said. "I think there is widespread dissatisfaction, especially among the soldiers who have already done one, two or even three combat deployments since 9/11 and now find themselves back in the Middle East for upward of a year."

Lt. Col. Michael Jones, chief of recruiting and retention at National Guard headquarters in Washington, said the two soldiers represent the views of a tiny minority of those whose terms of service have been involuntarily extended.

"It is only two individuals out of 200,000 who are taking this action," said Jones, who also said he doubted any veteran soldiers would be surprised or caught off-guard by the involuntary call to duty.

"It's like a doctor who smokes and later claims that he didn't know that cigarettes cause cancer," Jones said. "Every veteran knows he faces possible active duty."