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withdrawn or changed at any time.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 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 Army recruitment activities
on May 20 is symptomatic of widespread recruiter deception and
unethical conduct. More important, the 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 a 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 GI (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
The son of migrant farm workers, 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 preparing 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
Santiago and his attorneys lost the first round in the U.S. District
Court in Oregon and immediately appealed to the U.S. 9th 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.
The 9th Circuit decision underwrites the almost limitless power
of the executive branch in national security situations, affirming
the government's contention that "there 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 9th 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 President
. . . to conduct the nation's military policy."
The 9th 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
upon 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 9th
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 estimated date of separation from the National Guard is recorded
as December 25, 2031. The government has assured him that the
date is simply an "administrative convenience."
Information sources: Santiago v. Rumsfeld,9th Cir.
2005; Nina Shapiro, "Stopping 'Stop-Loss,'" Seattle
Weekly,March 30-April 5, 2005; Jim Christie, "Appeals
court OKs forced military extensions," Washington Post,May
This article is from Draft NOtices, the newsletter
of the Committee Opposed to Militarism and the Draft (http://www.comdsd.org)