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[Stan Goff shows that Stop-Loss is utterly illegal - on multiple grounds. And what are we fighting for? Freedom! Here's how this shocking article ends: "Meanwhile, head down to the local recruiting station with this information in hand, and deny each station at least four recruits a month. That is how we fight back right now." -JAH]
BACK-DOOR LAW, BACK-DOOR DRAFT
By
Stan Goff
© Copyright 2005, From The Wilderness Publications, www.fromthewilderness.com. All Rights Reserved. This story may NOT be posted on any Internet web site without express written permission. Contact admin@copvcia.com. May be circulated, distributed or transmitted for non-profit purposes only.
May 25, 2005 1400 PST (FTW) In late April and early May I seemed to be living in airports. While I haunted these fluorescent fortresses, I was dismayed by two recurrent experiences. One was the absolute saturation of airports by televisions piping in the insipid and vacuous chattering of CNN "news." Equally disturbing was the increasing number of people in desert camouflage uniforms, bound for the Energy War, who appeared to be as old as me… some even older. For the record, I am 53.
I couldn't help thinking about the stories of the Ardennes, when Hitler's generals - with the Wehrmacht now fertilizing their own former axes of advance from the Oder River to the blood-drenched byways of Stalingrad, and their shattered machinery littering the terrain from Normandy to the muddy foothills of Southern Belgium - conscripted adolescent boys and geriatric men to face the Allied juggernaut aimed through Belgium at the heart of the fatherland.
Seems a fitting cautionary tale, given that as I write this people around the world are celebrating the 60th anniversary of VE Day. Even more so, with Richard Cheney's presidential meat puppet doing the rounds in the former Soviet Union, wagging his blue-blooded, Texas National Guard finger at Russians for the Molotov-Ribbentrop Pact… at the people who laid down 27 million lives to soak Hitler's fascism into their very heartland and crush it.
This administration, which has posited expansionary war as the organizing principle of its nation, now shifts the onus for Hitler's lethal failure of his own project of expansion from the perpetrators to those who were most savagely victimized by it. Any self-respecting Russian within arm's reach of George W. Bush should slap the fucking taste out of his mouth.
And the victor's historians have buried the details of the aforesaid Pact, painting it as Russian cynicism, when it was Russian necessity, forced on them by their own future allies in the United States and Great Britain. A very good account of this sorry episode is available at http://www.columbia.edu/~lnp3/mark_jones/appeasement.htm.
While it is certainly true that the Bush administration has not committed itself (yet) to the military conquest of Eurasia (actually it's Southwest Asia they are bent on), it is increasingly apparent that - in a new historic milieu - this regime has gambled on military conquest, underestimated its own modern-day "untermenschen," and bogged down. It is also true (again) that the militarists have risked it so completely that they've ditched all other options, and now seek solace and validation in the modern-day equivalent of astrologers and soothsayers.
That is why grandfathers are prancing around airports, got up in desert camouflage, in a loony mid-life masculine euphoria, on orders to a place that is anything but euphoric.
Still Rumsfeld resists conscription. With Bush's popularity now at the lowest of any second-term president at this point in the second term, no apparition could haunt the administration more than the inevitable political awakening of America's somnambulant youth, raised in the aggressive me-first zeitgeist of the 90s who would now be asked to sacrifice life, limb, and eyesight for a war that 57% of America now says was not worth it.
Instead it is now the older who will take up the slack. In March, the Army raised the maximum age for recruits from 34 to 39 years old. This, according to the Army, will raise the population "pool" from approximately 60 million to 82 million, where presumably the Army will catch these aging recruits like trout. The Department of Defense already spends $600 million on its advertising budget for recruitment.
The Army wanted to send 7,050 trainees to basic training this February. They had not missed a basic training quota since May 2000, but in February, they sent 5,114 recruits to Basic, a staggering shortfall of 27%. For the first time in a decade, the Marine Corps has suffered serial monthly recruiting shortfalls. Recruiters for the Reserves report shortfalls by almost half, and that with a recruiting ad budget that has been increased from $300 million a year to $600 million a year, which includes giveaway war-game DVDs, access to roving million-dollar game-vans, and forced federal access to high schools under the No Child Left Behind Act.
The charnel house in Iraq is making it difficult to recruit and retain troops, even with recruiters intentionally targeting populations with annual incomes below the artificially high poverty line. Consequently, recruiters themselves are now under extremely heavy pressure to make quotas, essential MOS's are being cycled through Iraq with increasingly short breaks in between deployments, family crises are multiplying, divorce rates are rising, desertion rates are mounting, and recruitment standards are being scaled down.
This is the face of institutional degradation; and at the end of the road, wherever that is - as was the case by 1971 in Vietnam - the final outcome is a military that fails to function as an effective fighting force.
It is no surprise that in preparation for his impending retirement, Chairman of the Joint Chiefs of Staff Richard Meyers said that the United States armed forces is now incapable of fighting another major war because of its over-reach (not his word) in Iraq.
Not only has the war itself created this retention and recruitment crisis in the armed forces, anti-war activists have begun to organize counter-recruitment campaigns all over the country to help the process along. Those activists can now add a new point to their repertoire - the only value of the enlistment contract remaining where it appoints a discharge date is to wipe the enlistee's ass with the paper. That discharge date is now effectively meaningless. The military can keep enlistees indefinitely. So go ahead, sign it…
Let me recap and explain.
While the residents of the United States and airport denizens like me have been treated to a steady diet of Lynddie England and Michael Jackson and the Runaway Bride, the most expensive and far flung military force in human history is being systematically and inexorably degraded as a fighting force by a war whose proponents said in March 2003 that it would be a "cakewalk."
Some cake. Some walk.
It is for all these reasons that Stop Loss, the Department of Defense policy that allows the involuntary extension of military service contracts - that is, delaying service members' discharge dates - has become critical to blunt this precarious attrition.
There are two problems with Stop Loss. One, it is incredibly unpopular in the military. Two, it is blatantly illegal.
Some people question the legality of the Stop Loss policy on the grounds that it violates the Constitutional prohibition on "involuntary servitude." This presents the Department of Defense with a dilemma, because the longstanding precedent for exception to the 13th Amendment is the draft. So by precedent, the 13th Amendment has already been violated repeatedly since it was first enacted every time the country needed to fill its ranks with cannon fodder. The dilemma now is that the administration does not want to use this particular precedent to justify Stop Loss, because the regime is denying that the policy is - as many critics have called it - a back door draft. This is not a legal show-stopper for Stop Loss, but certainly an embarrassment for people who don't want to use the D-word.
The administration is on trickier legal terrain, however, if we scrutinize the specific authority to enact it. It was actually enacted by an Executive Order on September 14, 2001, three days after the World Trade Center collapsed and at a point when the number of Congress members with enough sand left to resist the stampede could be counted on one hand. That actual order can be found at http://www.whitehouse.gov/news/releases/2001/09/20010914-5.html. This Executive Order claims its authority from the National Emergencies Act (NEA)(50 U.S.C. 1601 et seq.) and section 301 of title 3, United States Code. The problem here is that the Executive Order cites the NEA as follows:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the National Emergencies Act (50 U.S.C. 1601 et seq.) and section 301 of title 3, United States Code, and in furtherance of the proclamation of September 14, 2001, Declaration of National Emergency by Reason of Certain Terrorist Attacks, which declared a national emergency by reason of the terrorist attacks on the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States, I hereby order as follows:
One little glitch… nothing in the NEA gives the President Constitutional authority to declare shit, if I may be short. You can pore over either document until the cows come home, and no such authority exists. Moreover, his proclamation of September 14 has all the legal validity of a Shakespeare sonnet.
Only Congress is legally authorized to make such declarations. The Constitution does not authorize the President to unilaterally declare such an emergency, therefore it surely does not authorize his dumb ass to impose any form of emergency measures to meet it. The reason this gross usurpation of Congressional authority happened was because Congress itself, with precious few exceptions, displayed the most craven and opportunistic cowardice in the face of this administration, and now they are as loathe as any neo-con nutcase to admit they fucked up. So this illegality stands to this day. But there is more…
According to United States Code, Title 50, Chapter 34, Sub-chapter II, Section 1622, once a state of emergency is declared (by the legal method), it must by law undergo a Congressional review and approval for any extension a minimum of every six months.
Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.
This language is not ambiguous. Yet Stop Loss, as an Executive Order, is fundamentally predicated on an existing state of national emergency that has not been brought under review for a joint resolution of Congress since it was unilaterally declared.
There's more. There is the contract, that one people sign with the military when they join. Enlistees generally have neither the time nor the inclination to read every word of every document among the volumes they sign in order to get on the military payroll. Many are too young and-or inexperienced to know what they are reading anyway. But there in paragraph 9(c) of the enlistment contract it says:
In the event of war, my enlistment in the Armed Forces continues until six (6) months after the war ends, unless my enlistment is ended sooner by the President of the United States.
This all sounds well and good, but again we have to refer back to that troublesome document, the Constitution, which stipulates that only Congress is authorized to declare the existence of an official state of war. But again, this has now been violated so many times and with such impunity by both parties that no one is willing to take anyone to task for it, and that includes the federal judiciary.
And we know about the federal judiciary these days, don't we. It has become part of a trilateral conspiracy to establish one-party rule in the Untied States, or I could say one-faction rule, given the overwhelming similarity of the two ruling-class parties.
(It is safe to conclude that the only people for whom the Constitution consistently provides protection are the very people from whom we most need protection.)
That explains why the 9th Circuit Court of Appeals, on Santiago v. Rumsfeld, ruled this April that Stop Loss is valid. Not only did they rule that Stop Loss is valid, but Department of Defense lawyers included their own assertion - for "administrative convenience" - that Stop Loss could remaining effect for Emiliano Santiago, who had completed his eight year commitment only to be involuntarily extended and shipped back to Afghanistan, resetting his termination date to Christmas Eve, 2031! Santiago is already 27, which means the military has now asserted its authority to retain him in the military until he is 53 years old.
There is good reason to be highly suspicious of this "administrative convenience." It will have precedence value in later legal cases.
One of the highest priorities of this administration after the September 11 attacks was to rapidly seize the initiative to massively strengthen the security state's ability to wield power against domestic political enemies, using the "war on terrorism" as a pretext. It was only rapid mobilization of leftists, pacifists, and civil libertarians to blunt this effort that prevented the administration from fully exploiting the shock of 9-11 to accomplish this in a matter of weeks… with no immediate help from the invertebrate Democrats in Congress I might add (again with a tiny handful of exceptions).
The neo-cons were enraged by this resistance, and Dick Cheney's spouse, Lynne Cheney, through the right-wing American Council of Trustees and Alumni (that normally tries to fight back against academic inclusion of anything but the white supremacist canon), published an enemies list of everyone who organized resistance on a college campus - a recrudescent McCarthyism ( I am proud to have been included on that list). Nonetheless, this forced the administration to retrench for a longer-term strategy of pushing the legal envelope in a host of cases in order to till the precedent-soil, so to speak.
This was the genesis of "illegal combatants" detention (a la Guantanamo), the Gonzales memos abrogating the Geneva Conventions, the grotesque detention of Jose Padilla, the resumption of legally sanctioned racial profiling, the roundup and interrogation of Arabs and Muslims living in the US, etc. All these extremely sketchy (from a juridical standpoint) actions were met with the expected lawsuits - just like Stop Loss - which the administration are now tying up in court where the right-wing has for years been placing its judicial ringers.
There is not only a back-door draft now in the military in the guise of Stop Loss policy; there is a back-door legal framework to strengthen and consolidate a security state that can detain its political enemies without recourse to counsel or even trial. This, of course, is as asinine as the cake-walk notion about the war in the long term, in my opinion… because Americans - including the most reactionary - are incredibly pig-headed, individualistic, and armed to the teeth. But in the near term, for as long as the administration can milk the "war on terrorism," these precedent building strategies, this bodes very ill for those same leftists, pacifists, and civil libertarians that so chagrined Lynne Cheney and her erstwhile racist buddies at ACTA.
Meanwhile, head down to the local recruiting station with this information in hand, and deny each station at least four recruits a month. That is how we fight back right now.
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