Military stop-loss being challenged in court

Story here
Anyone who has read the other stop-loss threads I’ve participated in knows I love the military and enjoyed my time in the service, but it doesn’t change the fact that stop-loss outside of the period military members are eligible for the ready reserve is forced servitude.
It’s been invoked more and more often and it’s been legal because it hasn’t been declared illegal.

Well, it’s being challenged. I know it is too early to celebrate, but it’s not too early to hope. I don’t want a debate and I don’t want to rant. I just wanted to pass on the news that stop-loss is being challenged in court.

I share your hope, but I can’t imagine a court overturning this. And I think the military’s defense is right there in the linked story – soldiers were informed of and agreed to those terms when they signed up originally.

I haven’t served in the military, but my sister was in the air force and she certainly knew about that possibility going in. Fortunately during her service it never became a real issue. I wonder if it’s never been tried because it’s so clearly spelled out in black and white that no lawyer has ever felt it worth challenging before.

I’d be very interested to learn if there is an appeal process available to soldiers who object to their service being extended. And if so, what percentage of soldiers raise a formal objection,

I would hope that it is overturned. I spent 6 miserable years in the Navy and I had actual nightmares that my service had been extended ‘indefinitely, at the request of and for the convenience of the US Government’ for at least 10 years after I got out. However, IMO, there’s absolutely no chance of the challenge being successful. The military has pretty successfully thumbed it’s nose at civilian courts for a very long time. Even if the Supreme Court were to decide that military extensions were unconstitutional, a simple executive order would overturn it. Besides, when you join the military, you are no longer protected by the Constitution, instead, you are subject to the UCMJ (Uniform Code of Military Justice), and while most of the Bill of Rights is contained in the UCMJ, it’s not ALL in there. You can still be charged with an Article 125 (I think), which allows you to be charged for anything your commanding officer deems to be unlawful, even if it is not specifically forbidden by regulations. You can break laws that don’t exist!

If it’s declared illegal, then an executive order instituting stop loss would be an illegal order. Military members are not expected to follow all orders. They are expected to follow all lawful orders.

And this is America, home of seemingly hopeless litigation. As long as it’s in front of the judge, you have a shot.

For the enlightenment of those unfamiliar with the terms of military service, the Enlistment/Re-enlistment Contract, DD Form 4/1, states on the back of the first page that for ALL enlistees

More here in this PDF.

The question for the courts to decide is has the Congress or the President made sufficient declarations to satisfy these clear contractual statements. I daresay Congress has not, they have not declared war since December 9th, 1941.

Do you have a cite for this? Having been in the service myself, I know I was covered under the UCMJ, but do you have a cite for servicemembers not being covered under the Constitution?

What I was taught was that, although we were covered under the UCMJ, the Constitution and all other relevant law still applies. IOW, I could still be prosecuted by the local civilian authority for civilian offenses AND by the Navy for offenses against the UCMJ.

In any event, servicemembers are still citizens of the United States. All citizens are subject to the Constitution. Some of the issues in Private England’s court martial are constitutional in nature. We don’t deny American citizens the protections of the Constitution merely because they raised their right hands and put on a uniform.

Robin

Untrue. The President does not have the power to change the Constitution by executive order. A constitutional amendment would be required.

Also untrue. It is the practice of the courts to give great deference to the military in policing its troops and setting its laws and policies, but no entity in the United States, including the military, is immune to the Constitution. The Constitution is the supreme law of the land and the UCMJ must be in accordance with its provisions.

All that being said, if the draft is constitutional (and it is, being included in the power of the Congress to raise armies) then the lesser imposition of stop-loss would also be found constitutional.

What I was taught was that certain constitutional protections may no longer apply. Note that this was subject to interpretation of the UCMJ. For example, article 88 states

The definition of “contemptuous” is up for debate, but this does seem to impose a fairly strict limit on a comissioned officers first ammendment rights.

There is a distinction between Lt. Smith and Citizen Smith. Citizen Smith can say whatever he wants to. Lt. Smith, OTOH, cannot. As long as the servicemember is not acting in his official capacity, he can say what he wishes; associate with whomever he wishes (within limits; I don’t think Uncle Sam would look favorably on a servicemember associating with criminals or terrorists.); espouse whatever political beliefs he chooses.

I’m sure Tripler will be along to elucidate us.

Robin

Not in my experience. If Lt. Smith is on Active Duty status, on Liberty, in civilian clothes, out in town, on a weekend, he/she may most certainly be prosecuted under the UCMJ for making slams against the President in public.

Major Daniel Rabil, USMCR learned this firsthand, after he lambasted Clinton in an Op-Ed article in the Washington Times, and he was disciplined, EVEN THOUGH he did it on his own time, not while “On Orders”. He was (and may still be) a RESERVIST, and this occured while NOT on weekend duty or any period of active duty training.

Here is another article about Maj Rabil and Maj Shane Sellers (was Active Duty Marine at the time), who both were disciplined under the UCMJ for talking smack about Clinton.

Article 88 (explained here pretty well) should make it more clear, with specific rules regarding Commissioned Officers. Enlisted folks could be prosecuted under Article 92.

Military members are subject to the UCMJ 24/7 while on Active Duty.

Sorry to make this three in a row.

To be more clear, this covers PUBLIC disparaging remarks against the President, not just talking about it with your neighbor across the fence, or in normal conversation. But Letters to the Editor, a bit on the Evening News, or buying space on a Billboard on the Interstate are all a no-no.

When I was in the Navy, I asked about political activity. I was told that I could pursue whatever activity I chose to do, and even speak out publicly as long as I did not identify myself as a sailor. That must be the difference.

At any rate, my original point was that the Constitution still applies to military personnel, in addition to the UCMJ and any applicable federal, state and local law.

Robin