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From Draft NOtices, July-August 2005

Military Enlistment, or When a Contract Isn't Really a Contract

—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to deliver to a new recruit — specific jobs or assignment, length of service, benefits, or even citizenship — can be withdrawn or changed at any time.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 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 and Iraq.

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 the policy.

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 13, 2005.

This article is from Draft NOtices, the newsletter of the Committee Opposed to Militarism and the Draft (


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